TaxTMI 
TaxTMI 
2021 (12) TMI 354
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.... a notice dated 2.8.2017 was issued by the complainant to the accused-applicant which is served to the accusedapplicant on 5.8.2017, even though accused-applicant neither replied nor complied with as claimed under the notice Hence, the complaint was filed. That, initially the complaint was registered as Criminal Inquiry No. 182 of 2017 vide order dated 8.9.2017 and it was kept for inquiry and the complainant was directed to remain present on 15.9.2017. That, the complainant has produced a list of documents along with the complaint and the examination-in- chief of the complainant on affidavit was also presented afterwards. That, by order dated 15.9.2017, below Exh. 1, complaint was ordered to be registered and process was directed to be issued u/s. 204 of the Code of Criminal Procedure making returnable on 9.10.2017. That, the said complaint is being registered as Criminal Case No. 2208 of 2017. 3. Being aggrieved by and dissatisfied with the order of issuance of process in the said complaint, the applicant has preferred this Criminal Misc. Application to quash and set aside the impugned complaint along with the order of issuance of process against him and all subsequent proceedi....
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.... 2017 was also not denied by the present applicant. That factual aspect cannot be examined by this Court issuing receipts by the respondent No.2 or accepting any amount from the applicant. That, issue of giving cheque for security purpose may not be examined by this Court at this juncture in this petition under Section 482 of Code of Criminal Procedure. Hence, it is requested by the respondent No.2 to dismiss this petition. 6. Mr. Moxa Thakkar, learned APP for the respondent -State has objected to allow this petition and submitted that the issue requires evidence of the parties likely to be recorded by the trial Court and therefore, this Court may not exercise the powers under section 482 of Cr.P.C in favour of the present applicant. 7. Having heard learned advocate appearing for the applicant; learned advocate appearing for the respondent No.2 as well as learned APP for the respondent-State, it appears that a complaint filed under Section 138 of the N.I.Act by the respondent No.2 was registered as Criminal Case No. 2208 of 2017. That, process was issued under section 204 of the Code of Criminal Procedure by the learned trial Court, as per order passed below Exh. 1 on 15th Se....
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....n. The applicant was required to lead evidence that the entire amount due and payable to the complainant was paid. 9. On the presumption under Section 139 of the N.I.Act, few decisions of the Hon'ble Apex Court are required to be referred to and considered which reads as under:- 6.1 In the case of K.N. Beena vs. Muniyappan, (2001) 8 SCC 458, it is observed and held by this Court that under Section 118 of the N.I. Act, unless the contrary is proved, it is to be presumed that the negotiable instruments (including a cheque) had been made or drawn for consideration. It is further observed and held that under Section 139, the Court has to presume, unless the contrary is proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. It is further observed that thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that the cheque has not been issued for a debt or liability is on the accused. 6.2 In the case of Rangappa (supra) again, this Court had an occasion to consider the presumption....
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....ture referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. 15. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) "may presume" (rebuttable), (2) "shall presume" (rebuttable), and (3) "conclusive presumptions" (irrebuttable). The term "presumption" is used to designate an inference, affirmative or disaffirmative of the existence of a fact, conveniently called the "presumed fact" drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means "taking as true without examination or proof". * * * 18. Applying the definition of the word "proved" in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the....
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....45:07 IST 2021 R/CR.MA/4616/2021 ORDER Court should not have expressed its view on the disputed questions of fact in a petition under Seciton 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of the NI Act stood uncomplied with, even though Respondent 1 (accused) had admitted that he replied to the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorised by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it. This court in case of "Deepak Shyamsunder Agrawal v. State of Gujarat and another " reported in 2017 Law Suit (Guj) 343, in para 15, has held as under: "Considering the above stated legal settled principles of law, while dealing with a quashing petition, the Court has ordinarily to proceed with all the averments in the complaint,....