TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 1082
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....tion 482 of the Code of Criminal Procedure, 1973 [hereafter 'Cr. P.C.'] read with Article 227 of the Constitution of India, the petitioners seek quashing of summoning orders dated 21.05.2018 and 21.07.2018 passed by learned MM-6, Rohini Courts, North District, Delhi [hereafter 'Trial Court'], in Criminal Complaint No. 3490/2017, filed under Section 138 of the Negotiable Instruments Act, 1881 [hereafter 'NI Act'] titled 'Progressive Finlease Ltd. vs. Karan Judge & Ors.' and consequent proceedings initiated thereupon. 2. Brief facts of the case, as borne out from the complaint filed under Section 138 of the NI Act, are that the respondent no. 2, i.e., Progressive Finlease Limited (the complainant) is a company engaged in providing loan servi....
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....favour of respondent no. 2, allegedly, as security for the concerned shares. Thereafter, it is stated that when respondent no. 2 deposited the said cheque for encashment, the same was dishonoured with the remarks "Payment Stopped by Drawer" vide return memo dated 05.06.2017. Thereafter, statutory notice dated 16.06.2017 was served upon the petitioners on 22.06.2017 calling for the repayment of cheque amount. However, the petitioner did not comply with the same, in which light, the respondent no. 2 was constrained to file a complaint on 21.07.2017 before the learned Trial Court, which was shortly followed by the issuance of summons vide orders dated 21.05.2018 and 21.07.2018. 3. Aggrieved therefrom, the petitioners have preferred the presen....
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....ndent no. 2 had, on multiple occasions, requested the petitioner for submitting statements of accounts etc. and for buy-back of shares, with the willingness to repay the entire loan with the requisite interest. It is contended that it had also sought an updated status vis-à-vis its shares; however, the petitioner did not adhere to the same, instead, they kept prolonging the closure of the transactions. In this backdrop, it is argued that the cheque in question, issued by the petitioner, could not be termed as being a 'security'. Moreover, it is argued that requisite steps upon the notice of the dishonour of the said cheque had been taken, thereby clearly making out a case under Section 138 of the NI Act. Lastly, it is contended that ....
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....dity; (ii) The holder of the cheque must make a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within thirty days from the receipt of the notice from the bank that the cheque was returned dishonoured; and (iii) The holder of the cheque fails to make the payment of the said amount of money within fifteen days from the receipt of the notice..." 8. There is no dispute that to constitute an offence under Section 138 of NI Act, the cheque in question should have been issued in discharge of some legally enforceable debt or liability. However, it is also well-settled that once certain facts have been shown to exist, the presumptive clauses under the scheme of the NI Act, such as Se....
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....ather stated that a duly-filled cheque had been issued to the respondent no. 2, but disputes the purpose of issuance of the said cheque. However, since the issuance of cheque, including the filling of details and the signatures put on the same, were admitted by the petitioners, the presumption under Section 139 of the NI Act squarely gets attracted against petitioners, that is, it has to be presumed that the cheque pertains to a legally enforceable debt or liability. 10. Notably, while the said presumption can be rebutted by the petitioners, the same has to take place at the stage of trial before the learned Trial Court, and not at a pre-trial stage, so as to stall the very initiation of proceedings before it. In the instant case, the peti....
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.... are rebuttable. Yogesh bhai has of course, raised the defence that there is no illegally enforceable debt and he issued the cheques to help appellant No. 3- Hasmukh bhai for purchase of lands. The burden lies upon the accused to rebut the presumption by adducing evidence. The High Court did not keep in view that until the accused discharges his burden, the presumption under Section 139 of N.I. Act will continue to remain. It is for Yogesh bhai to adduce evidence to rebut the statutory presumption. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr. P....