2020 (2) TMI 412

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....Act by appellant No.3-Hashmukhbhai Ravjibhai Patel. Both appellant No.1- Rajeshbhai and his brother Yogeshbhai are stated to be residents of United Kingdom. In this appeal, appellant No.1-Rajeshbhai is represented through his Power of Attorney holder-appellant No.2- Vipulkumar Hasmukhbhai Patel. Respondent-Yogeshbhai is represented through his Power of Attorney holder-another respondent-Mahendrakumar Javaharbhai Patel. 4. On 08.12.2015, appellant No.3-Hasmukhbhai Ravjibhai Patel filed a criminal case being C.C.No.367/2016 against accused Yogeshbhai under Section 138 of N.I. Act. The father of appellant No.1-Rajeshbhai and Yogeshbhai had agricultural lands bearing Block/Survey Nos.534, 536/1/A, 536/1/B, 538, 539, 540, 541/1, 542 and 543 situated at Village Fofaliya, Ta. Dabhoi, District Vadodara. In 2010, in order to sell his father's land, Yogeshbhai called up appellant No.3 who is also the maternal uncle of Yogeshbhai and Rajeshbhai. Since appellant No.3 was also planning of buying some agricultural land from the surplus funds which he has received from the sale of his agricultural land, he accepted the proposal of Yogeshbhai. Yogeshbhai who is residing in United Kingdom showed....

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....RO Account No.08540107512, they were returned unpaid on 12.10.2015. The Complainant issued notice on 17.11.2015 and therefore, claim qua the two cheque Nos.8108 and 8109 are barred by limitation under the provisions of Negotiable Instruments Act. The complaint therefore, pertains only for cheque Nos.20801 and 20802 of NRE Account No.085401000566 which were returned unpaid on 30.10.2015. Complaint under Section 138 of N.I. Act against Yogeshbhai was taken on file on 05.02.2016 in C.C.No.367/2016. On 06.09.2016, the Court of 5th Additional Civil Judge & JMFC, Bharuch issued a bailable warrant for production of accused Yogeshbhai. 8. Appellant No.3-Hasmukhbhai has filed a Special Summary Suit No.105/2015 before the Additional Chief Judicial Magistrate, Vadodara for recovery of Rs. 1,20,00,000/- under Order 37 of CPC. Summary Suit No.105/2015 filed by appellant No.3 was based on the four receipts issued by respondent No.2-Mahendrakumar. The Court in that case has issued summons for appearance against Yogeshbhai and Mahendrakumar which has been served on 01.11.2015. According to the respondents, they came to know about those four receipts only after they have been served with summons....

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....ction 482 Cr.P.C. for quashing of FIR No.I-194/2016. Yogeshbhai who is the accused in the criminal case being C.C.No.367/2016 also filed Criminal Misc. Application No.24588/2017 for quashing of cheque case filed against him under Section 138 of N.I. Act. Yogeshbhai claimed that he has given the cheques to appellant No.3-Hasmukhbhai who approached him requesting for help to purchase land. Yogeshbhai alleged that the appellants have forged the receipts issued by respondent No.2-Mahendrakumar. In this regard, Yogeshbhai placed reliance upon the report of the hand-writing expert, Directorate of Forensic Science dated 15.12.2016 as per which, the disputed signatures of Mahendrakumar Javaharbhai on the receipts were not written by him i.e. respondent No.2-Mahendrakumar Javaharbhai. 11. Vide the impugned judgment dated 14.12.2018, the High Court dismissed Criminal Misc. Application No.2735/2017 and declined to quash the FIR No.I-194/2016. The High Court held that on the basis of four receipts allegedly issued by Mahendrakumar, the third appellant-Hasmukhbhai has filed the Summary Suit No.105/2015 for recovery of Rs. 1,20,00,000/-. The High Court referred to the hand-writing expert's op....

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.... the civil suit and the dispute is of civil nature, the continuation of the criminal case is an abuse of process of the Court and the FIR No.I- 194/2016 is liable to be quashed. It was also contended that the High Court erred in quashing the cheque case filed under Section 138 of N.I. Act and the High Court did not keep in view that issuance of cheques by Yogeshbhai from his NRE Account has been admitted. 14. Refuting the above contentions, Ms. Aishwarya Bhati, learned Senior counsel for the respondents has submitted that appellant No.3-Hashmukhbhai is the maternal uncle of Yogeshbhai and relying upon the words of appellant No.3 and his son-appellant No.2-Vipulkumar, Yogeshbhai issued two cheques bearing Nos.8108 and 8109 for Rs. 30,00,000/- each from his NRO Account and after issuing the cheques, Yogeshbhai realised that there was no funds in the said account and he asked appellant No.3 to return the above cheques and collect new cheques of another account. It was submitted that thereafter Yogeshbhai issued new cheques of NRE Account bearing Nos.20801 and 20802 of Rs. 30,00,000/- each and at that time, appellant No.3 had told that he had not brought the old cheques with him and....

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.... Date Cheque No. Account Amount Date of Dishonour 1. 12.10.2015 8108 NRO Account No.08540107512 Rs. 30,00,000/- 12.10.2015 2. 12.10.2015 8109 NRO Account No.08540107512 Rs. 30,00,000/- 12.10.2015 3. 30.10.2015 20801 NRE Account No.085401000566 Rs. 30,00,000/- 30.10.2015 4. 30.10.2015 20802 NRE Account No.085401000566 Rs. 30,00,000/- 30.10.2015   Total     Rs. 1,20,00,000/-   On presentation, the above cheques were dishonoured on the ground "Payment stopped by the Drawer". After issuing the legal notice, appellant No.3-Hasmukhbhai filed criminal case in C.C.No.367/2016 on 08.12.2015 pertaining to two cheques bearing Nos.20801 and 20802. It was only thereafter, respondent No.2- Mahendrakumar had filed the criminal complaint dated 20.03.2016 and also filed another criminal complaint dated 14.04.2016 against appellant No.1-Rajeshbhai and appellant No.2-Vipulkumar. Since the police had not registered the FIR, respondent No.2 filed SCRA No.5945/2016 and SCRA No.6349/2016 before the High Court for seeking directions for lodging FIR. The High Court vide orders dat....

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....cheque is admitted/established, the presumption would arise under Section 139 of the N.I. Act in favour of the holder of cheque that is the complainant-appellant No.3. The nature of presumptions under Section139 of the N.I. Act and Section 118(a) of the Indian Evidence Act are rebuttable. Yogeshbhai has of course, raised the defence that there is no illegally enforceable debt and he issued the cheques to help appellant No.3-Hasmukhbhai for purchase of lands. The burden lies upon the accused to rebut the presumption by adducing evidence. The High Court did not keep in view that until the accused discharges his burden, the presumption under Section 139 of N.I. Act will continue to remain. It is for Yogeshbhai to adduce evidence to rebut the statutory presumption. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the N.I. Act on the legal issues like limitation, etc. Criminal complaint filed under Se....