TaxTMI 
TaxTMI 
2021 (11) TMI 650
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.... Dharam Pal 9,50,000/- 1st June, 2017 1494/2017 Bag Poly International Pvt. Ltd. 20,00,000/- 3rd June, 2017 1399/2017 Radhey Shyam 19,00,000/- 22nd May, 2017 1335/2017 Bijender Singh 25,00,000/- 17th May, 2017 1424/2017 Virender Singh 19,00,000/- 24th May, 2017 573/2017 Rohit 22,00,000/- 7th June, 2017 1547/2017 M/s Mahadev Handloom 24,00,000/- 6th June, 2017 As similar facts are involved, these petitions are being decided by single order. The facts are being taken from CRM-M-29886-2017. RELEVANT FACTS: [2] The relevant facts necessary for adjudication are that marriage of petitioner was solemnized with Arun Mittal son of Babu Ram Mittal on 2nd February, 2012. Shortly after marriage, petitioner alongwith her husband went to USA and started residing there. They were blessed with a son on 23rd February, 2016. During her short stay in India after marriage, petitioner opened a bank account No. 32185162677 in the State Bank of India on 10th February, 2012. From June, 2015 onwards, their matrimonial relation faced rough weather. After coming back to India, petitioner and her husband indulged into mat....
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.... Interim order to continue." [5] Aggrieved of the order, complainant challenged it before the Supreme Court. The Supreme Court disposed of criminal appeal on 15th April, 2021 and following order was passed:- "We have heard Mr. Dharamraj Ohlan, learned counsel for the appellant and Mr. Ashok Arora, learned counsel for the respondent. Leave granted. The High Court has in a Section 482 petition against the complaint made under Section 138 of the Negotiable Instruments Act passed an order in which it has directed the respondent No. 1 inter alia to produce documentary proof of his source of income together with land, jama bandis etc. We are of the view that this kind of interim order in a Section 482 petition cannot be passed. Either the quash petition be allowed or dismissed. The rest is a matter for evidence to be taken up before the learned Magistrate. On this short ground, we set aside this order. We make it clear however that nothing in our order will be taken to be a reflection on the merits of the matter. The High Court may take up at the earliest the quash petition itself and dispose of the same on its own merits. Mr. Ashok Arora,....
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....the petitioner, F.I.R. No. 760 was investigated and thereafter cancellation report prepared which is pending before the Court concerned. Reliance is placed on Sections 118 and 139 of the Act to submit that under the Act, presumptions are in favour of the complainant. [10] Learned counsel for respondent No.1 submits that matrimonial litigation of the petitioner is being used as a shield for nonpayment of the amount due. RELEVANT PROVISIONS: [11] Sections 118, 138 and 139 of the Act are quoted below:- SECTION 118 - PRESUMPTIONS AS TO NEGOTIABLE INSTRUMENTS. Until the contrary is proved, the following presumptions shall be made:- (a) of consideration:-- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date:-- that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance: that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; ....
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....the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-- For the purposes of this section, debt of other liability means a legally enforceable debt or other liability. XX XX XX SECTION 139 - PRESUMPTION IN FAVOUR OF HOLDER. 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 the discharge, in whole or in part, of any debt or other liability. XX XX XX LEGAL POSITION: [12] Following decisions of the Supreme Court would be relevant:- * State of Haryana and others Versus Bhajan Lal and others, 1992 (Supp) 1 SCC 335. "108. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not conf....
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....ittle doubt that the very first ingredient of Section 138 of the Act, enumerated above, is not satisfied and consequently the case against the appellant for having committed an offence under Section 138 of the Act cannot be proved. * Pulsive Technologies P. Ltd. Versus State of Gujarat (2014) 13 SCC 18. "14. The High Court also erred in quashing the complaint on the ground that the contents of the reply sent by the accused were not disclosed in the complaint. Whether any money is paid by the accused to the complainant is a matter of evidence. The accused has ample opportunity to probabilis his defence. On that count, in the facts of this case, complaint cannot be quashed." * HMT Watches Ltd. Versus M.A. Abida, (2015) 2 RCR (Criminal) 366. "10. Having heard learned counsel for the parties, we are of the view that the accused (respondent no.1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of....
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....e courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.' XX XX XX 14. For the reasons as discussed above, we find that the High Court has committed grave error of law in quashing the criminal complaints filed by the appellant in respect of offence punishable under Section 138 of the N.I. Act, in exercise of powers under Section 482 of the Code of Criminal Procedure by accepting factual defences of the accused which were disputed ones. Such defences, if taken before trial court, after recording of the evidence, can be better appreciated." CONCLUSION [13] During the pendency of these petitions, respondent No. 2 was impleaded as a party. The matter was referred to the Mediator attempting an amicable settlement between the parties but no fruit was yielded. At the time of arguments, learned counsel for the parties on specific query from the Court, submitted that there is no chance of settleme....