2020 (11) TMI 76

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....titioner has sought quashing of the complaint on the ground that he had entered into a Memo of Understanding with the respondents on 21.05.2016, wherein the parties have defined their respective rights and obligations towards each other. The details of Memo of Understanding are not required to be reproduced herein. It is further case of the petitioner that he had given three cheques as a security to the respondents. It is worthwhile to mention here that respondent No. 2 is not the party to the complaint, pending before the learned trial court. Petitioner has further stated in the petition that the cheques were given without any date but the amounts were mentioned in the same. He further avers that as a matter of goodwill he had paid a sum o....

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....7 that establishes the fact that no notice regarding the dishonour of the cheque was issued to the petitioner before filing the complaint. 5. Per contra, Mr. L. A. Lateef, learned counsel for the respondents has vehemently argued that respondent No. 1 has filed the complaint after following the mandate of section 138 of the Negotiable Instruments Act and during the course of hearing, he even produced the photocopy of the postal receipt dated 05.10.2017 through virtual mode also and he has further argued that the statement of the complainant-respondent No. 1 was recorded on oath. He lastly argued that the petitioner can raise all these pleas before trial court but not in a petition under section 561-A Cr.P.C. 6. Heard and perused the recor....

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....ion 138 NI Act, no doubt can be quashed when it suffers from legal lacunae but not on the factual issues those are to be adjudicated upon only during the trial. Reliance is placed upon the decision of Apex Court in case titled Rajeshbhai Muljibhai Patel v. State of Gujarat, reported in (2020) 3 SCC 794 and the relevant para is reproduced as under: "22. The High Court, in our view, erred in quashing the criminal case in CC No. 367 of 2016 filed by Appellant 3 Hasmukhbhai under Section 138 of the NI Act. As pointed out earlier, Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the NI Act in favour of the holder of cheque that is the com....