TaxTMI 
TaxTMI 
2023 (10) TMI 1154
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....ed by the sole proprietor namely Harmeet Singh Kochhar. During the course of business, accused had approached the complainant for supply of cables, and the complainant had time and again supplied material to the accused against appropriate invoices. It was stated that as on 07.05.2019, a sum of Rs. 23,35,736/- was due and payable by the accused and thus, the accused/petitioner had issued a cheque bearing no. 313217, dated 07.05.2019, amounting to Rs. 23,35,736/- drawn on Canara Bank, Delhi in favour of complainant. However, when the complainant had presented the said cheque for encashment with its bank, the same had got dishonored vide return memo dated 13.05.2019 for the reasons 'Kindly Contact Drawer'. Thereafter, the accused had assured the complainant that the said cheque would be honoured upon subsequent presentation, however, when the cheque was again presented, it had got dishonored for the same reason i.e. 'Kindly Contact Drawer'. The complainant had then issued a statutory legal notice of demand dated 23.08.2019 calling upon the accused to make payment within 15 days, but the accused had failed to do so. Accordingly, the present complaint under Section 138 of NI Act was fi....
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....e parties and has perused the material placed on record. 6. The operative portion of impugned summoning order dated 25.09.2019 passed by the learned Trial Court, by way of which the petitioner was summoned in CC No. 13531/2019, reads as under: "...I have heard arguments on point of summoning and perused the complaint, evidence byway of affidavit, bank memo, cheque, demand notice and other documents on record. Prima facie the complaint is within limitation. In view of the averments made in the complaint, this Court has territorial jurisdiction to entertain this complaint. No other offence other than Section 138 of NI Act is made out against the accused person(s). Perusal of the record shows that the accused Harmeet Singh Kochhar is the proprietor of GSM Engineering Company. The cheque also bears the signatures of the accused Harmeet Singh Kochhar. Let summons be issued to accused Harmeet Singh Kochhar, proprietor of GSM Engineering Company at the given address(es) on filing of PF within 10 days, returnable on 28.01.2020. Summons be issued positively within 15 days from receipt of PF. Non-compliance will be viewed strictly." 7. The Hon'ble Apex Court in Dashrathbhai Trika....
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....eque. On the other hand, the case of complainant is that the petitioner herein had not filed the complete ledger which had been filed by the complainant before the learned Trial Court, which clearly shows that the total amount due from the petitioner was Rs. 48.98 lakhs and the amount of cheque was much less than the existing legally enforceable debt. 10. In these facts and circumstances, both the parties have assailed the genuineness of ledgers maintained by each party during the normal course of business. The complete ledger, being Exhibit CW1/4 in CC No. 13531/2019, filed by respondent alongwith the reply to the present petition, shows that the total amount due and payable by petitioner towards respondent was Rs. 19,43,826 + Rs. 2954,706, which amounts to a total of Rs. 48,98,532/-. The petitioner, however, argued that the last page of this ledger is false and fabricated. 11. At this stage, when only the summons have been issued by the learned Trial Court against the petitioner on the basis of perusal of complaint under Section 138 of NI Act, supporting documents filed thereof and the pre-summoning evidence tendered by the complainant, and when the documents filed by the compl....
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....lainant's case without allowing the complainant to lead evidence. Such a determination should necessarily not be rendered by a Court not conducting the trial. Therefore, unless the Court is fully satisfied that the material produced would irrefutably rule out the charges and such materials being of sterling and impeccable quality, the invocation of Section 482 Cr.P.C power to quash the criminal proceedings, would be unmerited. Proceeding on this basis, verdict was given against the appellant, who was facing the proceeding under Section 138 of the N.I. Act. With all liberty given to the appellant to raise his defence in the trial court, his quashing petition came to be dismissed. 8. The issue to be answered here is whether summons and trial notice should have been quashed on the basis of factual defences. The corollary therefrom is what should be the responsibility of the quashing Court and whether it must weigh the evidence presented by the parties, at a pre-trial stage. *** 10. It is also relevant to bear in mind that the burden of proving that there is no existing debt or liability, is to be discharged in the trial. For a two judges Bench in M.M.T.C. Ltd. v. Medchl Chemica....
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....t there are inter se disputes between Appellant 3 and Respondent 2. Without keeping in view the statutory presumption raised under Section 139 of the NI Act, the High Court, in our view, committed a serious error in quashing the criminal complaint in CC No. 367 of 2016 filed under Section 138 of the NI Act." *** 16. The proposition of law as set out above makes it abundantly clear that the Court should be slow to grant the relief of quashing a complaint at a pre-trial stage, when the factual controversy is in the realm of possibility particularly because of the legal presumption, as in this matter. What is also of note is that the factual defence without having to adduce any evidence need to be of an unimpeachable quality, so as to altogether disprove the allegations made in the complaint. 17. The consequences of scuttling the criminal process at a pre-trial stage can be grave and irreparable. Quashing proceedings at preliminary stages will result in finality without the parties having had an opportunity to adduce evidence and the consequence then is that the proper forum i.e., the trial Court is ousted from weighing the material evidence. If this is allowed, the accused may ....