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2023 DIGILAW 118 (HP)

Shailza Jadack v. Bal Krishan Rawat

2023-03-07

JYOTSNA REWAL DUA

body2023
JUDGMENT : The petitioner is accused in the complaint instituted by the respondent under Section 138 of the Negotiable Instruments Act (in short ‘N.I. Act’). She has invoked the restrictive jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (Cr.PC) for quashing of this Complaint bearing No.20-3 of 2016 (Bal Krishan Rawat Versus Shelja Jadack) pending before the learned Judicial Magistrate 1st Class, Jubbal, District Shimla. 2. Facts in brief:- 2(i). The respondent preferred complaint under Section 138 of the Act on 14.06.2016. Petitioner was accused therein. The averments in the complaint are that the petitioner/accused was in contact with the respondent/complainant. In May, 2012, the petitioner requested the respondent to lend her a sum of Rs.20 Lakh. The complainant was promised early return of the loan amount by the petitioner. The respondent/complainant had accordingly lent Rs.20 Lakh to the petitioner. For discharging this liability, the petitioner/accused issued post-dated Cheque bearing No.179728, dated 01.08.2012, for Rs.20 Lakh drawn from State Bank of India, Shimla in favour of the respondent/complainant. 2(ii). It was further stated in the complaint that the cheque was presented by the complainant in the Bank, however, it was dishonoured by the Bank on 29.10.2012 for want of sufficient funds. Memo in this regard was issued by the Bank to the respondent/complainant the same day, i.e. on 02.01.2013. After completing necessary codal formalities, the complaint was preferred by the respondent on 14.06.2016. 3. The petitioner/accused seeks quashing of the proceedings on the ground that the complainant has not been able to disclose the source of funds, out of which the amount under cheque was alleged to have been loaned out to her. It has been emphasized by learned counsel for the petitioner/accused that the respondent/complainant was neither in a position nor had the capacity to lend loan amount of Rs.20 Lakh, as alleged in the complaint. That provisions of Section 118 of the Act have not been complied with inasmuch as the reason for lending the alleged loan amount and the requisite meticulous details thereof have not been mentioned in the complaint. For these reasons, prayer has been made for quashing the complaint made under Section 138 of the Act. That provisions of Section 118 of the Act have not been complied with inasmuch as the reason for lending the alleged loan amount and the requisite meticulous details thereof have not been mentioned in the complaint. For these reasons, prayer has been made for quashing the complaint made under Section 138 of the Act. Opposing the prayer, learned counsel for the respondent/complainant submitted that the complaint was instituted by the respondent during the year 2016, whereafter, the petitioner/accused successfully evaded service and eventually non-bailable warrants were issued against her by the learned Trial Court during the year 2019. At that time, the petitioner/accused preferred Cr.MMO Nos.187 and 188 of 2019 for quashing non-bailable warrants issued against her by the learned Trial Court. Since the petitioner/accused undertook to appear before the learned Trial Court, therefore, non-bailable warrants issued against her were ordered to be recalled in terms of the decisions dated 10.09.2019 rendered in the aforesaid Cr.MMOs. Learned counsel for the respondent/complainant further contended that the petitioner/accused is yet to lead her evidence. Her contentions are to be examined by the learned Trial Court on the basis of evidence to be adduced by her. That the arguments advanced for the petitioner/ accused at this stage are premature. Prayer was accordingly made for dismissal of the petition. 4. Having heard learned counsel on both sides, I am not inclined to exercise the jurisdiction under Section 482 Cr.PC in favour of the petitioner. This is for the following reason:- It is well settled that Section 482 Cr.PC endows restrictive jurisdiction, which has to be exercised in accordance with law based upon the facts scenario of each case. In the instant case, the petitioner/accused has not disputed that the cheque in question was issued by her. Hon’ble Apex Court in 2022 (3) Crimes 343 (P. Rasiya Versus Abdul Nazer and another) has held that in terms of Section 139 of the Negotiable Instruments Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. Once the initial burden is discharged by the complainant that the cheque was issued by the accused and the signature and issuance of the cheque is not disputed by the accused, in that case, onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the Negotiable Instruments Act is a statutory presumption. It will be appropriate to extract the relevant paragraph from the judgment:- “7. Feeling aggrieved and dissatisfied with the judgment and orders passed by the Appellate Court affirming the conviction of the accused under Section 138 of the N.I. Act, the accused preferred three different Revision Applications before the High Court. By the impugned common judgment and order, the High Court has reversed the concurrent findings recorded by both the courts below and has acquitted the accused on the ground that, in the complaint, the Complainant has not specifically stated the nature of transactions and the source of fund. However, the High Court has failed to note the presumption under Section 139 of the N.I. Act. As per Section 139 of the N.I. Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the Complainant/holder of the cheque, in that case, it is for the accused to prove the contrary. The aforesaid has not been dealt with and considered by the High Court. The aforesaid has not been dealt with and considered by the High Court. The High Court has also failed to appreciate that the High Court was exercising the revisional jurisdiction and there were concurrent findings of fact recorded by the courts below.” In the backdrop of above legal position, the contention of the petitioner/accused that the cheque was not issued by her in discharge of any debt is to be proved by her by leading cogent evidence. The petitioner has neither disputed the issuance of the cheque nor her signatures on the cheque. Therefore, no case is made out for exercise of jurisdiction under Section 482 Cr.PC for quashing the complaint. For all the aforesaid reasons, I find no merit in the instant petition. The same is accordingly dismissed alongwith pending miscellaneous application(s), if any. Parties, through their learned counsel, are directed to appear before the learned Trial Court on 29.03.2023.