TaxTMI 
TaxTMI 
2025 (6) TMI 527
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.... JMFC, Kamrup (M), Guwahati and C.R. Case No. 7614/2022 under Section 138 of N.I. Act pending in the Court of learned JMFC, Kamrup (M), Guwahati. 3. The gist of the petitioner's case is that, the petitioner No. 1 (M/s Maa Bagala Amusement Hub), represented by its Managing Partner Shri Sanjib Deka (petitioner No. 2), has executed a Lease Deed dated 30.10.2015 with the respondent for taking on lease a vacant plot of land and the lease rent was fixed at Rs. 1,60,000/- (Rupees One lakh sixty thousand) per month, subject to a 15% increase after every 3(three) years and the petitioners have always made timely payments of lease rent for the said Lease Deed into the respondent's bank account via account payee cheques issued in the name of M/s Maa Bagala Amusement Hub. However, some dispute arose between the parties regarding the non-supply of earlier G.M.C. tax pay receipts paid by the respondent to G.M.C which caused hindrance to the petitioners in obtaining trade license from G.M.C to run their amusement hub, namely, "Frozen Planet". Ultimately, the said hub had to be closed down by the petitioners and a dispute arose between the parties regarding GST payment, which ultimately created a....
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....legedly issued from M/s OM Construction, of which the petitioner No. 2 is the proprietor, for the purpose of securing payment of monthly rent. It is further alleged that, on good faith, the respondent accepted those post-dated cheques from the petitioner No. 2/accused, which were to be drawn on IDBI Bank, Satyen Niwas, Pan Bazar Branch, and also on Oriental Bank of Commerce. 8. It is further alleged that the accused/petitioner No. 2 was paying monthly rent regularly up to October, 2018. However, from November, 2018, the accused/petitioner No. 1 had been irregular in paying the monthly rent and despite several request from the complainant/respondent, the accused/petitioner No. 2 failed to pay the amount and subsequently, he issued some post-dated cheques which were dishonored for insufficient balance in the account. However, the accused/petitioner No. 2 then request the complainant/respondent over the phone not to deposit the post-dated cheques on the ground that there was no sufficient balance in his account and after clarifying the arrear rent through different cheques, he took back all the post-dated cheques from the complainant/respondent. However, the accused/petitioner No. 2 ....
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.... cheques were dishonoured only due to "Other Reasons". It is clear that all the complaint cases were filed by the respondent only to harass the petitioner No. 2, as there was a dispute between the petitioner No. 2 and the respondent for non-issuance of assessment order by Guwahati Municipal Corporation (G.M.C) and non-payment of GST amount as stated in paragraph 7 of the complaint cases. 13. Mr. Roy, learned counsel further submitted that the respondent had filed a title suit being T.S No. 545/2022 against the petitioners, claiming a decree for eviction of the petitioners from the plot of land measuring about 2 Bighas, 3 Kathas, 16 Lechas covered by Dag Nos. 1432 & 1433 (new) and KP Patta Nos. 447 and 1634 of village Betkuchi, Mouza, Beltola under Revenue Circle, Dispur and also prayed for a decree for recovery of monthly rent for the month of June, 2021 till August, 2022 @ Rs. 2,11,600/- (Rupees two lakhs eleven thousand six hundred) per month, from the petitioners. The petitioners have also filed W.S. and the same is pending for disposal before the Court of learned Civil Judge No. 2, Kamrup (M), Guwahati, Assam. 14. In view of the above, this is a fit case wherein, all the crim....
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.... delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr. P.C.:- (i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? (ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court s....
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....sel for the appellant has also referred to the judgment of the High Court and specifically paragraphs 23 and 32. The High Court in paragraphs 23 and 32, which has been relied and referred by counsel for the appellant, observed: "23. The presumption available under Section 139 of NI Act has to be rebutted and that rebuttal can only be done after adducing evidence. This, by itself clearly reflects that the rebuttal presumption cannot be looked into at the stage of the Court taking cognizance of the offence and registering the case: all that Court would have to see is whether there is a prima facie case made out meeting the conditions precedent as envisaged under Section 138 of NI Act, which in the instant case, in the opinion of this Court, the Respondent has in fact been able to establish and fulfill all such ingredients. 32. As has been stated in the preceding paragraphs since there is a presumption to be drawn of there being a debt or liability in part or in whole of the drawer to the holder of the instrument, the Court below cannot be said to have faulted upon in taking cognizance and in registering the offence. Since it is a rebuttal presumption and all the contentions and a....
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....ainst Yogeshbhai ought not have been quashed merely on the ground that there are inter se dispute between appellant No. 3 and respondent No. 2. Without keeping in view the statutory presumption raised under Section 139 of the N.I. Act, the High Court, in our view, committed a serious error in quashing the criminal complaint in C.C.No. 367/2016 filed under Section 138 of N.I. Act. 21. He further submitted that if there is any default in payment in case of post-dated security cheques, Section 138 of N.I. Act will be attracted, to substantiate the plea, he also placed reliance on another judgment of the Hon'ble Supreme Court reported in (2023) 1 SCC 578 (Dashrathbhai Trikambhai Patel vs. Hitesh Mahendra Patel) and emphasized on paragraph 16, which reads as follows: "16. Based on the above analysis of precedent, the following principles emerge: 16.1 Where the borrower agrees to repay the loan within a specified timeline and issues a cheque for security but defaults in repaying the loan within the timeline, the cheque matures for presentation. When the cheque is sought to be encashed by the debtor and is dishonoured, Section 138 of the Act will be attracted; 16.2 However, the car....
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....n etc., will come only at the stage of trial and not at the stage of taking cognizance. Wherein, the learned Court's below had already taken cognizance finding a prima facie case against the petitioners. Furthermore, it is also the case of the petitioner that post-dated security cheques which were dishonoured by drawing bank can also attract the case under Section 138 of N.I. Act. 26. Upon considering the submissions made by the learned counsel for both sides, also on perusal of the pleadings of the parties as well as the annexures filed along with the petition, it is evident that there is no dispute regarding the issuance of post-dated security cheques by the petitioner No. 2. Further, it is also not disputed that there was a lease deed agreement between the parties and pursuant to said lease deed agreement, the petitioner No. 2 was paying monthly rental amount to the respondent. The dispute arose when the petitioners allegedly failed to pay the monthly rental amount for which, the respondent had to deposit the post-dated security cheques issued by the petitioner No. 2. However, it is seen that those post-dated security cheques were issued by the petitioner No. 2 in the name of M....