2021 (4) TMI 470 - HC - Indian Laws

Court Dismisses Petition Challenging Criminal Case Orders; Upholds Section 139 Presumption

Mohd. Yahya Farooqui @ Firoz Farooqui Versus State Of U.P. Thru Prin. Secy. Secretariat Annexe & Ors.

The petition challenging orders in a criminal case under Section 138 of the Negotiable Instruments Act was dismissed. The court upheld the legality of the ... Dishonor of Cheque - rebuttal of presumption - signatures on cheque accepted - decision on receipt of notice - Section 143A of Negotiable Instruments Act - HELD THAT:- Considering that the petitioner has admitted his signatures on the cheque in question and that even according to the petitioner some amount was due and payable, there is a presumption under Section 139 of the N.I. Act that there exists a legally enforceable debt or liability. Of course such presumption is rebuttable in nature and the same could only be done by adducing evidence at trial but at this stage as the minute appreciation of evidence is not to be done complaint could not be quashed on this score. Therefore at this stage of trial complainants are entitled for the presumption as provided under Section 139 of N. I. Act. The reciept of notice could not be decided in the proceedings under Section 482 Cr.P.C and the same has to be decided in the trial after the evidence has been led by the parties - the trial court is directed that if in compliance of its order dated 11.11.2020 the required amount is deposited or recovered from the petitioner the same will only be released in favour of opposite parties 2 and 3 on their furnishing adequate sureties, so that the amount remains secured. There are no merits in the petition - petition dismissed. Issues Involved:1. Challenge to the orders dated 01.03.2021 and 11.11.2020.2. Legality of proceedings under Section 138 of the Negotiable Instruments Act, 1881.3. Compliance with Section 251 Cr.P.C.4. Service of notice under Section 138 of the Negotiable Instruments Act.5. Interim compensation under Section 143A of the Negotiable Instruments Act.Detailed Analysis:1. Challenge to the Orders Dated 01.03.2021 and 11.11.2020:The petitioner challenged the orders passed by the Additional Sessions Judge, Court No.1, Lucknow, and the Additional Court, Room No.5, Lucknow. The petitioner sought quashing of the entire proceedings of the criminal case under Section 138 of the Negotiable Instruments Act, 1881.2. Legality of Proceedings Under Section 138 of the Negotiable Instruments Act, 1881:The complainants alleged that the petitioner took a loan and issued a cheque for Rs. 30 lacs, which was dishonored with the remark 'payment stopped by drawer.' The petitioner denied issuing the cheque for any financial liability and claimed it was lost. The court noted that the cheque bore the petitioner's signature, creating a presumption under Section 139 of the Act that the cheque was issued for a legally enforceable debt. This presumption is rebuttable, and the burden lies on the petitioner to prove otherwise.3. Compliance with Section 251 Cr.P.C.:The petitioner argued non-compliance with Section 251 Cr.P.C. The court found that the trial court had recorded the petitioner's statement, informing him of the accusations. The petitioner admitted the signature on the cheque but claimed it was missing. The court held that sufficient compliance with Section 251 Cr.P.C. was made, and the petitioner had the opportunity to explain the accusation.4. Service of Notice Under Section 138 of the Negotiable Instruments Act:The complainants sent a demand notice through Speed Post, e-mail, and WhatsApp. The notice sent by post was returned unserved. The court referred to the Supreme Court's rulings, stating that service of notice is presumed if sent to the correct address by registered post. The court held that disputed facts regarding the service of notice should be decided during the trial and not in proceedings under Section 482 Cr.P.C.5. Interim Compensation Under Section 143A of the Negotiable Instruments Act:The trial court directed the petitioner to pay Rs. 6 lacs (20% of the cheque amount) as interim compensation. The petitioner contended that the cheque was not issued for a legally enforceable liability. The court noted that Section 143A allows for interim compensation not exceeding 20% of the cheque amount. The court found no illegality in the trial court's order but directed that the amount should be released to the complainants only upon furnishing adequate sureties to ensure its return in case of the petitioner's acquittal.Final Judgment:The petition was dismissed. The trial court was directed to proceed with the complaint case expeditiously and dispose of it in accordance with the law. The court clarified that the observations made should not influence the trial court's decision on the merits of the case.