TaxTMI 
TaxTMI 
2023 (12) TMI 1491
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....- complainant with a promise to repay the same. When respondent No. 2- complainant demanded the said amount, the petitioner issued a cheque bearing No. 021925 dated 17.12.2018 for an amount of Rs. 9 lakhs drawn on State Bank of Bikaner and Jaipur (now merged in State Bank of India, Branch Bhagat Singh Chowk, Abohar) in favour of the respondent No. 2-complainant with an assurance that the same will be enchased on presentation. However, on presentation of the said cheque by respondent No. 2-complainant in his bank account, the same was dishonoured vide return memo dated 18.12.2018 with remarks 'account closed'. The respondent No. 2 complainant had sent legal notice dated 27.12.2018 to the petitioner asking him to liquidate the cheque amount but he did not make the payment within the stipulated period prescribed in the notice and thus, the complaint in question was filed. 3. The respondent No.2-complainant led the preliminary evidence and the learned trial Court being convinced that a prima facie case was made out against the petitioner under Section 138 of the NI Act, summoned the petitioner vide impugned order dated 11.04.2019. 4. Learned counsel for the petitioner submitted t....
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....ant has to fulfill the ingredients of Section 138 of the NI Act, which are as follows:- (i) The drawing of a cheque by person on an account maintained by him with the banker for the payment of any amount of money to another from that account; (ii) The cheque being drawn for the discharge in whole or in part of any debt or other liability; (iii) Presentation of the cheque to the bank arranged to be paid from that account; (iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount; (v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and (vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice. 9. As soon as the complainant discharges the burden to prove that the instrument (cheque/promissory note) was executed by th....
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....and the competent court to take cognizance of the offence. These steps are distinct from the ingredients of the offence which the enacting provision creates and makes punishable......" 10. The argument raised by the petitioner before this Court is that he used to sell his crops to respondent No.3, who kept some of his cheques with him for withdrawal of cash and later on, in connivance with respondent No. 2 misused the said cheques. It is not the case of the petitioner that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the petitioner that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence qua exercise of undue influence or coercion. 11. Another argument raised by the counsel for the petitioner that the return memo dated 18.12.2018 with remarks 'account closed' was obtained by the respondent No.2 in an illegal and unjust manner, as the cheque issued was of the State Bank of Bikaner and Jaipur, which bank ....
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.... the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The 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." 12. The issue whether summons and trial notice should have been quashed on the basis of factual defences and as a corollary therefrom, 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, has been answered by a two Judge Bench of the Hon'ble Supreme Court in Rathish Babu Unnikrishnan Versus State (Govt. of NCT of Delhi) and another 2022 SCC OnLine SC 513 while speaking through Justice Hrishikesh Roy, in the following terms:- "11. The legal presumption of t....
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.... that a possible view is taken that the cheques drawn were, in discharge of a debt for purchase of shares. In any case, when there is legal presumption, it would not be judicious for the quashing Court to carry out a detailed enquiry on the facts alleged, without first permitting the trial Court to evaluate the evidence of the parties. The quashing Court should not take upon itself, the burden of separating the wheat from the chaff where facts are contested. To say it differently, the quashing proceedings must not become an expedition into the merits of factual dispute, so as to conclusively vindicate either the complainant or the defence. xxxx xxxx xxxx 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....