Gujarat High Court
Rajeshbhai Paulbhai Chauhan vs State Of Gujarat on 14 September, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
R/CR.MA/14408/2017 ORDER DATED: 14/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 14408 of 2017
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RAJESHBHAI PAULBHAI CHAUHAN
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR ASHISH H SHAH(2142) for the Applicant(s) No. 1
MR P P MAJMUDAR(5284) for the Respondent(s) No. 2
MS. MAITHILI D. MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 14/09/2022
ORAL ORDER
1. By way of the present application, the applicant has challenged the proceedings of Criminal Case No. 1827 of 2017 which is pending in the Court of learned 4th Additional Judicial Magistrate First Class, Anand. The applicant has prayed for the following reliefs:
"(A) This Hon'ble Court be pleased to admit and allow the present petition;
(B) This Hon'ble Court be pleased to quash and set aside Page 1 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 the proceedings of Criminal Case No. 1827/2017 pending in the court of learned 4th Additional Judicial Magistrate First Class, Anand;
(C) This Hon'ble Court be pleased to quash and set aside the order dated 25.04.2017 passed by the learned 4 th Additional Judicial Magistrate First Class, Anand issuing summons against the present petitioner in Criminal Case No. 1827/2017;
(D) That pending admission, final hearing and disposal of the present petition, this Hon'ble Court be pleased to stay further proceedings of Criminal Case No. 1827/2017 pending in the court of learned 4 th Additional Judicial Magistrate First Class, Anand;
(E) The ex-parte ad interim relief in terms of the aforesaid prayer clause be granted;
(F) Any other and further relief which this Hon'ble Court deems fit and expedient be granted in the interest of justice."
2.1. It is the case of the applicant that, the respondent no.2 - original complainant executed an agreement to sell dated 24.11.2005 before the Notary Public and had agreed to sell the land bearing Survey No. 1026/2 admeasuring Hector 0- 21-25 sq.mtrs., Survey No. 1027/P admeasuring Hector 0-19-20 sq.mtrs. and Survey No. 1034/P admeasuring Hector 0-18-21 sq.mtrs. for a consideration of Rs.9,51,000/- per guntha. The Page 2 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 total land agreed to be sold by the agreement to sell was admeasuring Hector 0-58-66 sq.mtrs. and the total sale consideration was Rs.5,57,85,660/-. That on the date of execution of the agreement to sell, the applicant herein paid Rs.5,00,000/- in cash and the same was acknowledged in the agreement to sell. That on the same date, i.e. on the date of execution of the agreement to sell, the applicant had paid Rs.20,00,000/- by account payee cheque bearing No. 00008 dated 25.11.2015 drawn on HDFC Bank. Thus, a total amount of Rs.25,00,000/- was paid on the date of execution of the agreement to sell on 24.11.2015. The applicant had further paid an amount of Rs.50,00,000/- by two cheques dated 07.03.2016 drawn on KOTAK Mahindra Bank.
2.2. The cheques in question being No. 000067 and No. 000068 dated 01.03.2017 of Kotak Mahindra Bank, Vallabhvidhyanagar Branch, Anand were issued for payment of sale consideration in respect of the land bearing Survey No. 1026/2, 1027/P and 1034/P of Village: Bakrol, Tal.: Anand. It Page 3 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 is further the case of the present respondent no.2 - original complainant that the lands situated at the aforesaid Survey Numbers were agreed to be sold at the sale consideration of Rs.5,57,85,660/- and the cheques in question were issued for the said sale consideration.
2.3. on 19.11.2016, the present applicant has issued 'stop payment' instructions to his bank. The aforesaid cheques were deposited by the respondent no.2 herein in his bank account maintained with Bank of Baroda, Anand branch. On 01.03.2017, the respondent no.2 - original complainant had deposited aforesaid two undated cheques, the same came to be returned with an endorsement of 'stop payment'. On 14.03.2017, the respondent no.2 herein had issued notice under Section 138 of the N.I.Act. On 23.03.2017, the applicant herein had given reply to the respondent no.2.
2.4. The respondent no.2 - original complainant therefore filed Criminal Case No. 1827 of 2017 before the Page 4 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 Court of 4th Additional Judicial Magistrate First Class, Anand against the applicant herein. On 25.04.2017, the concerned Court below issued summons to the present applicant. 2.5. Being aggrieved and dissatisfied with the same, the present applicant has approached this Court, with the reliefs, as referred hereinabove.
3. Heard Mr. Ashish H. Shah, learned counsel appearing for the applicant and Mr. P.P. Majmudar, learned counsel appearing for the respondent no.2 - original complainant.
SUBMISSIONS ON BEHALF OF THE APPLICANT:
4.1. Mr. Ashish Shah, learned counsel submitted that the entire amount of the sale consideration was paid to the respondent no.2. It was further submitted that the complainant had executed an agreement to sell dated 24.11.2015 for sale of the land bearing Survey No. 1026/2, 1027/P and 1034/P of Page 5 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 Village: Bakrol, Tal.: Anand for a consideration at the rate of Rs.9,51,000/- per guntha and the total sale consideration was worked out at Rs.5,57,85,660/-. The applicant had paid an amount of Rs.25,00,000/- on the date of execution of the agreement to sell and the applicant had paid an amount of Rs.50,00,000/- by account payee cheque on 07.03.2016. 4.2. Mr. Shah, learned counsel submitted that applicant had further paid an amount of Rs.1,00,00,000/- in cash and the respondent no.2 - original complainant had executed receipts in lieu thereof. The applicant had paid the balance sale consideration in cash on the date of execution of the sale deed and had further paid an amount of Rs.1,20,00,000/- by way of cheque on 05.07.2016, i.e., on the date of execution of the sale deed. On payment of entire sale consideration, the respondent no.2 - orig. complainant had executed three different registered sale deeds dated 05.07.2016 registered with the office of the Sub Registrar, Anand on 07.07.2016. The respondent no.2 - original complainant had at the time of Page 6 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 execution of the sale deeds, not raised any objection or grievance regarding non-receipt of the sale consideration of the aforesaid lands.
4.3. Mr. Shah, learned counsel submitted that, in fact, in the video recording before the Sub Registrar, Anand, the respondent no.2 - orig. complainant had admitted the position that the respondent no.2 - original complainant received entire sale consideration from the applicant herein. Mr. Shah, learned counsel further submitted that even at the time of mutation of entries in the revenue records on 12.07.2016 and also certification of the mutation entries on 06.09.2016 before the Mamlatdar, the respondent no.2 - original complainant had not raised any grievance or dispute regarding non-receipt of the sale consideration.
4.4. Mr. Shah, learned counsel relying on the aforesaid submissions, submitted that the complaint filed by the respondent no.2 is false, frivolous and the said complaint is Page 7 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 liable to be quashed and set aside.
4.5. Mr. Shah, learned counsel submitted that the respondent no.2 in the impugned complaint has not disclosed the true and correct facts. The respondent no.2 - original complainant has not disclosed the fact that the respondent no.2 with his son and daughter-in-law had executed another agreement to sell in respect of the land bearing Survey No. 1030 of Village: Bakrol, Tal. & Dist.: Anand admeasuring Hector 0-42-49 SM (Acre 42-49 Gunthas) for a consideration at the rate of Rs.9,51,000/- per guntha. Subsequently, by an oral agreement dated 12.07.2016, it was agreed between the applicant and the respondent no.2 - orig. complainant that the land which is not available for construction / development on account of standard deduction by AVKUDA and on account of ONGC gas pipeline, would be deducted, and accordingly, the sale consideration was re-fixed between the parties. 4.6. Mr. Shah, learned counsel submitted that, on Page 8 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 12.07.2016, it was agreed between the applicant and the vendors that the sale consideration would be at the rate of Rs.9,51,000/- per guntha only, in respect of the land which is available for development / construction and use, that is, approximately, 25 gunthas of the land bearing Survey No. 1030 of Village: Bakrol, Tal. & Dist.: Anand, and accordingly, the total sale consideration was re-fixed as per the oral agreement dated 12.07.2016 at Rs.2,37,86,000/-. The applicant herein had issued two undated cheques towards the security of sale consideration of the land bearing Survey No. 1030 of Village: Bakrol, Tal. & Dist.: Anand. It was agreed between the parties that the aforesaid two undated cheques were to be deposited on execution of the sale deed in respect of the land bearing Survey No. 1030. That the possession of the land in question was handed over to the present applicant on 12.07.2016.
4.7. Mr. Shah, learned counsel submitted that, the respondent no.2 - original complainant and his son and Page 9 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 daughter-in-law were avoiding execution of the sale deed in respect of Survey No. 1030 and were making false excuses, and therefore, the applicant had issued 'stop payment instructions' in respect of two undated cheques. Mr. Shah, learned counsel further submitted that, the applicant was / is always ready and willing to pay the amount of Rs.1,57,86,000/- as well as an amount of Rs.55,00,000/- to be paid in cash towards the sale consideration of the land bearing Survey No. 1030 of Village: Bakrol, Tal. & Dist.: Anand provided the respondent no.2 - orig. complainant and his son and daughter-in-law are ready and willing to execute the sale deed in respect of the land of Survey No. 1030. 4.8. Mr. Shah, learned counsel submitted that, the said two undated cheques were to be deposited only on execution of the registered sale deed in respect of land bearing Survey No. 1030 of Village: Bakrol, Tal. & Dist.: Anand, and therefore, there is no legally enforceable debt, and therefore, the complaint is liable to be quashed and set aside. Page 10 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 4.9. Mr. Shah, learned counsel relying on Section 92 of the Indian Evidence Act submitted that in the facts of the present case, no further evidence is required to be led, in view of the fact that the document in question has been proved. 4.10. Mr. Ashish H. Shah, learned counsel appearing for the applicant submitted that the case of the respondent no.2 - original complainant is beyond the prudence of an ordinary man and that no person would execute sale deeds and hand over possession of the lands without receiving entire sale consideration.
4.11. Relying on the aforesaid submissions, Mr. Shah, learned counsel submitted that the complaint filed by the complainant - respondent no.2 may kindly be quashed and set aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.2 - ORIGINAL COMPLAINANT:
Page 11 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022
R/CR.MA/14408/2017 ORDER DATED: 14/09/2022
5.1. Mr. P.P. Majmudar, learned counsel appearing for the respondent no.2- original complainant submitted that the impugned complaint is not an abuse of process of law and undated cheques were not issued towards security of sale consideration of land bearing Survey No. 1030 situated at Village: Bakrol, Tal. & Dist.: Anand, and denied the fact that the respondent no.2 - original complainant was avoiding the execution of the sale deed, the present applicant had issued 'stop payment instructions' on 19.11.2016. 5.2. Mr. Majmudar, learned counsel also disputed the fact that the applicant herein was ready and willing to pay the amount of Rs.1,57,86,000/- and the balance sale consideration of Rs.55,00,000/- to be paid in cash, provided that the respondent no.2 - original complainant is ready and willing to execute the sale deed in respect of the land bearing Survey No. 1030 situated at Village: Bakrol, Tal. & Dist.: Anand. It was submitted that the cheques in question were issued for Page 12 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 payment of sale consideration in respect of the land bearing Survey Nos. 1026/2, 1027/P and 1034/P of Village: Bakrol, Tal. & Dist.: Anand for a total sale consideration of Rs.5,75,85,660/- and the cheques in question were issued for the same, as sale consideration.
5.3. Mr. Majmudar, learned counsel denied that on the date of execution of the sale deeds, the applicant had paid an amount of Rs.2,62,86,000/- in cash and Rs.1,20,00,000/- by way of account payee cheques towards balance sale consideration of the aforesaid lands bearing Survey Nos. 1026/2, 1027/P and 1034/P situated at Village: Bakrol, Tal. & Dist.: Anand. Mr. Majmudar, learned counsel submitted that, no such amount in cash was paid by the applicant herein. The receipts annexed at Annexure-C by the applicant herein amounting to a total Rs.1,00,00,000/- only. Mr. Majmudar, learned counsel also disputed the fact that the respondent no.2
- orig. complaint, his son and daughter-in-law were avoiding the execution of the sale deed in respect of Survey No. 1030 Page 13 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 and were making false and frivolous excuses and therefore, the applicant had issued 'stop payment instructions' in respect of two undated cheques. The crux of the submissions canvased by Mr. Majmudar, learned counsel is that the cheques in question were issued for the transaction with regard to the Survey Nos. 1026/2, 1027/P and 1034/P situated at Village: Bakrol, Tal. & Dist.: Anand and the land bearing Survey No. 1030 has no connection with the impugned complaint filed by the respondent no.2 herein.
6.1. Mr. Shah, learned counsel appearing for the applicant, in rejoinder, reiterated the submissions and stated that it is undisputed fact that the respondent no.2 never raised any objection, with regard to the transaction qua Survey Nos. 1026/2, 1027/P and 1034/P situated at Village: Bakrol, Tal. & Dist.: Anand and accepted the same by not raising any objection before the Sub Registrar, while the sale deed have been registered, and therefore, the present complaint filed by the applicant herein is required to be quashed and set aside. Page 14 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022
R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 6.2. Mr. Shah, learned counsel relied on the judgment in the case of Indus Airways Private Limited and others v/s. Magnum Aviation Private Limited and another reported in (2014) 12 SCC 539.
7. The facts that emerged for consideration are that the cheque in question which was presented by the respondent no.2 on 01.03.2017 which is duly produced at page-105 and 106, is duly signed by the applicant herein. The said cheques came to be returned on 04.03.2017 with an endorsement of 'on stop payment'. It appears that the aforesaid cheques having been returned, the respondent no.2 issued a statutory notice under the provisions of Section 138 of the Negotiable Instruments Act, 1881 on 14.03.2017, which is duly produced at page-108 (Annexure-L). The said notice dated 14.03.2017 was replied by the applicant herein on 23.03.2017. The said reply is duly produced at page-113. It appears that pursuant thereto, the respondent no.2 herein filed Criminal Case No. 1827 of 2017 before the Court of Additional Judicial Magistrate Page 15 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 First Class, Anand. On 25.04.2017, the process came to be issued in the aforesaid Criminal Case / Complaint and on even date i.e. on 25.04.2017, the Court passed the following order, which reads thus:
"Order below complaint at Exhibit-1 Affidavit of the complaint/ verification is taken in to consideration. Heard the prosecution Advocate. Considering the statement and documentary evidence, there is well- founded material against the accused. Therefore, the complaint be registered and upon payment of the required process fee, summons be issued to the accused under section 138 of Negotiable Instrument Act, returnable on 23/05/2016.
Sd/-Illegible
Date : 25/04/2017 4th Additional Chief
Judicial Magistrate"
8. Being aggrieved by the issuance of the process by the learned Magistrate by an order dated 25.04.2017, the applicant herein has approached this Court by filing the present application.
9. It appears that, in the meantime, the applicant issued notice to the respondent no.2 on 02.06.2017 seeking specific performance of the agreement to sell with regard to Page 16 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 the disputed Survey Nos. 1026/2, 1027/P and 1034/P situated at Village: Bakrol, Tal. & Dist.: Anand.
10. While issuing Notice by this Court, the applicant came to be protected by order dated 03.07.2017 and ad-
interim relief came to be granted in favour of the applicant herein.
11. It is the case of the applicant herein that the notice which is issued by the respondent no.2 is specifically with regard to the transaction, which was an incomplete transaction with regard to the agreement to sell dated 24.11.2005, for which the notice for specific performance came to be issued by the applicant herein to complete the said transaction and the applicant herein is ready and willing to conclude the said transaction by paying the amount which is due and payable as agreed by and between the parties.
12. Per contra, Mr. Majmudar, learned counsel has disputed the same and submitted that the cheques in question Page 17 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 as stated above were deposited for the earlier transaction, wherein, it is the case of the respondent no.2 that there were outstanding dues, and therefore, the respondent no.2 deposited the cheques qua the earlier transaction i.e. transaction of land bearing Survey Nos. 1026/2, 1027/P and 1034/P situated at Village: Bakrol, Tal. & Dist.: Anand.
13. At this stage, it is apposite to refer to the following decisions:
13.1. In the case of K. Bhaskaran v/s. Sankaran Vaidhyan Balan and Anr. reported in AIR 1999 SC 3762, relevant para reads thus:
"14. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. Following are the acts which are components of the said offence : (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice."Page 18 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022
R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 13.2. In the case of Pulsive Technologies Pvt. Ltd. v/s. State of Gujarat and Others reported in (2014) 13 SCC 18, the relevant observations read thus:
"10. We find that the High Court has relied on M.M.T.C. Ltd. and Modi Cements and yet drawn a wrong conclusion that inasmuch as cheque was dishonoured because of "stop payment" instructions, offence punishable under Section 138 of the NI Act is not made out. The High Court observed that "stop payment" instructions were given because the complainant had failed to discharge its obligations as per agreement by not repairing/replacing the damaged UPS system. Whether complainant had failed to discharge its obligations or not could not have been decided by the High Court conclusively at this stage. The High Court was dealing with a petition filed under Section 482 of the Code for quashing the complaint. On factual issue, as to whether the complainant had discharged its obligations or not, the High Court could not have given its final verdict at this stage. It is matter of evidence. This is exactly what this Court said in M.M.T.C. Ltd. Though the High Court referred to M.M.T.C. Ltd., it failed to note the most vital caution sounded therein.
11. The High Court also erred in quashing the complaint on the ground that the contents of the reply sent by the accused were not disclosed in the complaint. Whether any money is paid by the accused to the complainant is a matter of evidence. The accused has ample opportunity to probabilis his defence. On that count, in the facts of this case, complaint cannot be quashed.Page 19 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022
R/CR.MA/14408/2017 ORDER DATED: 14/09/2022
12. In view of the above, we set aside the impugned order dated 08/09/2011 passed by the Gujarat High Court in Criminal Misc. Application No. 1757 of 2007 with Criminal Misc. Application No. 9158 of 2007. We direct the Chief Judicial Metropolitan Magistrate, Vadodara to dispose of the Criminal Complaint No.6076 of 2006 as expeditiously as possible and, in any event, within a period of one year from the date of receipt of this order."
13.3 In the case of HMT Watches Limited V/s. M.A. Abida and Another reported in (2015) 11 SCC 776, the relevant observations read thus:
"10. Having heard learned counsel for the parties, we are of the view that the accused (respondent no.1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 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 thatSection 138(b) of N.I. Act stood uncomplied, even though the respondent no.1 (accused) had admitted that he replied the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorized by the complainant company or not, could Page 20 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 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.
13. In view of the law laid down by this Court as above, in the present case High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial court.
15. For the reasons as discussed above, we find that the High Court has committed grave error of law in quashing the criminal complaints filed by the appellant in respect of offence punishable under Section 138 of the N.I. Act, in exercise of powers under Section 482 of the Code of Criminal Procedure by accepting factual defences of the accused which were disputed ones. Such defences, if taken before trial court, after recording of the evidence, can be better appreciated."
13.4. In the case of Rathish Babu Unnikrishnan v/s. The State (Government of NCT of Delhi) & Anr. reported in 2022 Live Law SC) 413, the relevant observations read thus:
"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.Page 21 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022
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11. The legal presumption of the cheque having been issued in the discharge of liability must also receive due weightage. In a situation where the accused moves Court for quashing even before trial has commenced, the Court's approach should be careful enough to not to prematurely extinguish the case by disregarding the legal presumption which supports the complaint. The opinion of Justice K.G. Balakrishnan for a three judges Bench in Rangappa vs. Sri Mohan4 would at this stage, deserve our attention: -
"26. ... we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant."
15. In the impugned judgment, the learned Judge had rightly relied upon the opinion of Justice J.S.Khehar for a Division Bench in Rajiv Thapar (supra), which succinctly express the following relevant parameters to be considered by the quashing Court, at the stage of issuing process, committal, or framing of charges, "28. The High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/ complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is Page 22 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/ complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same."
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.
18. Situated thus, to non-suit the complainant, at the stage of the summoning order, when the factual controversy is yet to be canvassed and considered by the trial court will not in our opinion be judicious. Based upon a prima facie impression, an element of criminality cannot entirely be ruled out here subject to the determination by the trial Court. Therefore, when the proceedings are at a nascent stage, scuttling of the criminal process is not merited."
13.5. In the case of Indus Airways Pvt. Ltd. and others v/ s. Magnum Aviation Pvt. Ltd. and another reported in (2014) Page 23 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 12 SCC 539, the relevant observations read thus:
"9. The explanation appended to Section 138 explains the meaning of the expression 'debt or other liability' for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The explanation leaves no manner of doubt that to attract an offence under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of existing or past adjudicated liability is sine qua non for bringing an offence under Section 138. If a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise, and material or goods for which purchase order was placed is not supplied, in our considered view, the cheque cannot be held to have been drawn for an exiting debt or liability. The payment by cheque in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability."
14. Considering the ratio as laid down by the Hon'ble Apex Court and the facts of the present case, the impugned cheques in question being No. 000067 and No. 000068 dated 01.03.2017 are duly signed by the applicant herein. Once the signature in cheque is admitted to be that of accused, the presumption envisaged in Section 118 of the N.I. Act can Page 24 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 legally be inferred that the cheque was drawn for consideration, for the date on which the cheque came to be issued. Section 139 of the N.I. Act enjoins to presume that the holder of the cheque received the same for the discharge of any debt or liability. The burden is on the accused to rebut the aforesaid presumption. In the facts of the present case, prima-facie, the respondent no.2 - complainant has established that the applicant herein - accused, by issuing 'stop payment' and not making the payment within 15 days from the date of issuance of notice, has made out a case under Section 138 of the N.I. Act. The contention raised as to whether the presumption drawn under Section 118 of the N.I. Act should be dislodged, in view of the facts narrated by the applicant herein, is a matter of evidence, which cannot be tried at this stage. The issuance of 'stop payment' was prior to the issuance of the cheques in question, shall not in any way terminate the proceedings which are pending before the Court below. The submission that no legally enforceable debt is due and payable by the applicant herein with regard to the earlier transaction, Page 25 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 can be decided by the trial Court only, by leading evidence, at the time of trial.
15. Though, it is the case of the applicant herein that the disputed cheques were issued for the purpose of 2 nd transaction. The respondent no.2 herein - orig. complainant has raised disputed question of facts with regard to the aforesaid contentions of the applicant herein and in view of this Court also, no specific conclusion can be arrived at, while exercising the discretion under Section 482 of the Code of Criminal Procedure. In view of above, the present dispute can only be decided at the time of trial and by leading evidence oral as well as written.
16. Even if, the case of the applicant herein is tested qua both the transactions, 1st sale deed which has attained the finality and 2nd, which is yet to attain the finality, there is no mention of the disputed cheques in any of the transactions. On the basis of the averments, this Court is not in a position to accept the submissions of the applicant that no legally Page 26 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022 R/CR.MA/14408/2017 ORDER DATED: 14/09/2022 enforceable debt exists, qua the present applicant.
17. It is, however, open for the applicant herein to take all the contentions as available under the law at the time of trial. The Court below shall decide the Criminal Case, independently, without being influenced by the findings arrived at by this Court. The findings arrived at by this Court, are only with regard to come to the aforesaid conclusion. The contentions raised by the applicant regarding Section 92 of the Evidence Act is also a triable issue and this Court cannot examine the same, at this stage. This Court has otherwise not opined on the merits of the matter.
18. In view of above, the present Application stands dismissed. Rule is discharged. Interim relief, if any, stands vacated.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 27 of 27 Downloaded on : Sun Dec 25 01:50:17 IST 2022