1. This application U/S 482 Cr.P.C. has been filed for quashing the summoning order dated 13th March, 2019 as well as the entire proceedings of the Complaint Case No. 14 of 2019 (Smt. Gyan Devi Vs. Ashok Ram Dular Vishwakarma) under Section 138 of Negotiable Instrument Act, Police Station-Aurai, District-Bhadohi, pending in the Court of Additional Chief Judicial Magistrate, Bhadohi, Gyanpur. Further it has been prayed that during the pendency of the present application, the further proceedings of the aforesaid criminal case be stayed.
2. On 28th June, 2019, a Coordinate Bench of this Court passed following order:
"Heard learned counsel for the applicant and learned A.G.A. for the State.
It is submitted by learned counsel for the applicant that the present matter relates to dishonour of cheque and the said matter can be well considered by Mediation Centre of this Court.
It is directed that applicant shall deposit a sum of Rs. 15,000/- within two weeks from today with the Mediation Centre of which 50% shall be paid to the opposite party no. 2 for appearance before the Mediation Centre.
The matter is remitted to the Mediation Centre with the direction that same may be decided after giving notices to both the parties.
It is directed that Mediation Centre shall decide the matter expeditiously preferably within a period of three months. Thereafter the case shall be listed before appropriate Bench in the second week of September, 2019.
Till the next date of listing, arrest of the applicant in Complaint Case No.14 of 2019, (Smt. Gyan Devi Vs. Ashok Ram Dular Vishwakarma), under Section 138 of Negotiable Instrument Act, Police Station Auraiya, District Bhadhoi, pending in the Court of the Additional Chief Judicial Magistrate, Bhadohi, Gyanpur, shall be kept in abeyance.
After depositing the amount, aforesaid, notice shall be issued to the parties and in the case the aforesaid amount is not deposited within the aforesaid period, the interim protection granted above shall automatically be vacated."
3. On 3rd September, 2020, this Bench passed following order:
"A mention has been made by Ms. Monika Jaiswal, Advocate holding brief of Smt. Ushma Mishra, learned counsel for the applicant to pass over the case.
Learned counsel for the opposite party no.2 states that on 28.06.2019, the matter was referred to Mediation Centre, however, the mediation between the parties has failed as is also clear from the Mediation Report dated 04.12.2019. Learned counsel for the opposite party no.2 further states that he has served a copy of counter affidavit to the learned counsel for the applicant on 09.12.2019.
Two weeks' time is granted to the learned counsel for the applicant to file rejoinder affidavit.
Put up on 18th September, 2020 in the additional cause list.
Interim order, if any, is extended till the next date of listing.
It is made clear that on the next date, the case will not be adjourned on any ground."
On 3rd November, 2020, following order was passed by this Bench:
"By order dated 28.06.2019, matter was referred to Mediation Centre.
As per the report of Mediation Centre dated 04.12.2019, mediation has failed, after which, matter was listed on 03.09.2020. However, a mention was made on behalf of Smt. Ushma Mishra on that date to pass over the case for the day and two weeks' time was granted to the learned counsel for the applicant to file rejoinder affidavit and it was made clear that on the next date, the case will not be adjourned on any ground and the matter was posted for 18th September, 2020.
On 29.09.2020 again a request was made for further time on behalf of the applicant to file rejoinder affidavit and two weeks' further time was granted to file rejoinder affidavit.
Mr. Sarveshwari Prasad, Advocate informs that he has been instructed by the husband of Smt. Ushma Mishra, learned counsel for the applicant to get the matter adjourned. Counsel is standing here and requesting for adjournment without the file and is not aware of the earlier orders as well as brief facts of the case.
Learned counsel for opposite party no. 2 has pointed out that on earlier occasions also just to linger on the matter, a request has been made on behalf of the applicant to pass over the case.
In such a situation, though the case is passed over but the interim order granted earlier on 28.06.2019 stands vacated.
The concerned court below may proceed with the case in accordance with law.
List this matter on 25th November, 2020. "
4. This Bench heard Mr. Sarveshwari Prasad, Advocate assisted by Mrs. Ushma Mishra, learned counsel for the applicant, Sri Ganesh Shanker Srivastava, learned counsel for complainant/opposite party no.2 and Mr. Pankaj Srivastava, learned A.GA. for the State as well as perused the entire material available on record.
5. The relevant facts, as are borne out from the records of the present application are as follows:
"A complaint case has been moved by opposite party no.2, namely, Mrs. Gyan Devi Brijlal Bharti on on 3rd January, 2019 before the Court of Additional Chief Judicial Magistrate, Bhadohi at Gyanpur under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "N.I. Act"). In the said complaint case, it has been alleged by the complainant that the accused-applicant was running a business in the name and style of "M/s. Vishwakarma Dish Ends Work" (for short "firm"), which was a partnership firm having its address at 81-B, General Block, MIDC, Bhosari, Pune. The accused-applicant was also running another business in the name and style of " M/s. Proficient Industries India Private Ltd." (for short "company") at the aforesaid place, which was a private limited company. The accused-applicant was a partner of the said firm and company having the post of Director and another partner of the said firm and company was Mr. Phunairam Chandrikaprasad Vishwakarma. The accused-applicant needed money to expand his business. The complainant being family friend was well known to the accused-applicant. The accused-applicant approached the complainant and requested her to invest money in the business of the aforesaid firm/company. The accused-applicant assured the complainant that if she invested Rs. 80,00,000/- (rupees eighty lacs only) in the said firm, he would make her co-partner in the said firm and give her 50% of the profit of the said firm on yearly basis. Apart from the above, the accused-applicant also assured the complainant that he will give her 25% share in the land which was owned by the said firm and 25% profit of every financial year of the said firm. The complainant was also assured by the accused-applicant that entire investment made by the complainant will also be refunded to her without any deduction at the time of her retirement from the said company. On believing the aforesaid proposal and assurance given by the accused-applicant, the complainant invested Rs. 80,00,000/- in the said company through the accused-applicant for the month September, 2013 to July, 2016. In the meantime, the business of the said firm was heavily affected, therefore, all the transactions and work of the said firm was stopped thereafter. Henceforth, the accused-applicant assured the complainant that she should have no worry, as he will include her name as director of the said company and ultimately on 8th November, 2016, the accused-applicant included her name as director of the said company for which a Memorandum of Understanding dated 17th August, 2017 was introduced, which was duly signed by the complainant and accused-applicant. The said memorandum of understanding was also notarized by Advocate and Notary, namely, Mr. Bhalachandra Anandrao Patil on 17th August, 2017.
It has further been alleged in the aforesaid complaint that due to financial hardship faced by the said company for the year 2016-2017, the accused-applicant also promised the complainant that he would pay her Rs. 1,00,000/- (rupees one lac only) per month from April, 2016 but the accused-applicant failed to pay the aforesaid money. Further the accused-applicant was not loyal in disclosing the day to day working towards complainant, hence she used to request the accused-applicant to disclose the books of accounts, balance-sheet, profit but he always refused to disclose the same to her and also used to abuse her with wrong words. The accused-applicant had also refused to give 25% share in the land of the firm and value of the machinery of the said firm, due to which a dispute was arisen between the complainant and accused-applicant. Thereafter due to non-fulfillment of the terms and conditions of the memorandum of understanding so introduced between them, the complainant threatened the accused-applicant that she will file police complaint against him and she will also go to the court for the wrongful acts and cheating done by him.
It has further been alleged that for settling the disputes, which had arisen between the accused-applicant and the complainant, the accused-applicant promised the complainant that he will return initially investment of Rs. 80,00,000/-. He further promised her that he will also pay Rs. 87,00,000/- towards shares against the investment made by the complainant to the accused-applicant. In consideration of profit, four cheques bearing nos. 041564 dated 7th September, 2018, 041565 dated 14th September, 2018, 041566 dated 21st September, 2018 and 041567 dated 28th September, 2018m amounting to Rs. 80,00,000/- drawn on Dena Bank, Bhosari Branch-Pune, which had been duly signed by the accused-applicant, were issued in favour of the complainant and he also requested the complainant to deposit the same in her bank accounts for withdrawal. It is also alleged that the accused-complainant accepted his legal liability of Rs. 87,00,000/- to complainant towards legal debt and for the said liability, the accused-applicant issued and handed over various cheques amounting to Rs. 87,00,000/- to complainant for discharging his legal liability to the complainant. On 21st October, 2018, the complainant deposited the aforesaid four cheques, which were issued by the accused-applicant, in Kashi Gomti Sanyukt Gramin Bank, Branch-Ugapur, District Bhadohi, wherein the saving bank account of the complainant was maintained, for withdrawal of the money, but same have been dishonoured and returned from her bank with a remark "FUNDS INSUFFICIENT" as on 31st October, 2018 and an intimation of the same has duly been received by the complainant on 16th November, 2018 from her Bank. Thereafter the complainant had issued legal notice to the accused-applicant through her Advocate on 22nd November, 2018 at his official address i.e. 81-B/11, General Block, MIDC, Bhosari, Pune-411026, which has also been received on 26th November, 2018. A notice has also been sent to the accused-applicant at his residential address i.e. Negla Pagaria Plaza, Flat No. 43, Pune Nashik Road Bhosari, Pune-411039, which has been returned with a remark "unclaimed" R/S dated 10th December, 2018. It is further alleged that despite the aforesaid legal notice, the accused-applicant has not made any payment to the complainant in respect of aforesaid dishonoured cheques. Therefore such intention of the accused-applicant is to commit and perpetuate a fraud upon the complainant and indulge into cheating and criminal misappropriation. The accused-applicant caused wrongful loss to the complainant. The accused-applicant has failed to make payment of cheques as demanded by the legal notice, hence a case for the offence punishable under Section 138 N.I. Act is made out against him.
After filing of the aforesaid complainant in the court of Additional Chief Judicial Magistrate, Bhadohi at Gyanpur under Section 138 N.I. Act, complainant/opposite party no.2 filed an affidavit under Section 200 Cr.P.C. on 2nd January, 2019. Thereafter, witnesses, namely, Devashish Bharti and Sant Lal, in support of the aforesaid complaint, have also filed their affidavits under Section 202 Cr.P.C. on 28th January, 2019. The said complaint case has been registered as Complaint Case No. 14 of 2019 (Smt. Gyan Devi Vs. Ashok Ram Dular Vishwakarma) under Section 138 of Negotiable Instrument Act, Police Station-Aurai, District-Bhadohi, pending in the Court of Additional Chief Judicial Magistrate, Bhadohi, Gyanpur. Considering the complaint and the affidavits of the complainant and her witnesses under Sections 200 and 202 Cr.P.C. respectively, the concerned Magistrate has taken cognizance and summoned the applicant to face trial under Section 138 N.I. Act vide order dated 13th March, 2019. It is against the summoning order dated 13th March, 2019 as well as the entire proceedings of the aforesaid complaint case that the present application under Section 482 Cr.P.C. has been filed.
It is the case of the applicant that complainant/opposite party no.2 has also filed a complaint under Section 138 N.I. Act on 6th December, 2018 at Pune (Maharashtra) in the court of Judicial Magistrate, First Class-Pinpri at Pinpri for dishonour of cheque of the accused-applicant issued in favour of the complainant for a sum of Rs. 7,00,000/- (rupees Seven lacs only). The applicant has also filed a civil suit on 30th April, 2019 in the court of Civil Judge (Senior Division), Pune seeking a direction upon the complainant/opposite party no.2 to pay the amount of Rs. 38 lacs to the accused-applicant at the rate of 18% per annum, a copy of the plaint dated 30th April, 2019 has been enclosed as Annexure-6 to the affidavit accompanying the present application.
6. Following contentions have been raised on behalf of the applicants:
I. The applicant had cordial relations with opposite party no.2 and in the guise of investment, she had tried by way of investment to interfere not only in the business of the applicant but also demanded 25% in the land and values of the machinery of M/s. Vishwakarma Dish Ends Work and M/s. Proficient Industries (India) Pvt. Ltd. both situated at 81-B, General Block, MIDC BHOSARI, Pune-411026.
II. Even though the amount is not contested but it may be reverted by the statement of Mr. Devashish Bharti as well as Shiv Lal in the statements filed under Section 202 Cr.P.C. Opposite party no.2 has been continuously threatening that she will file police complaint and will go to the courts of law, even after receiving the amount due from the applicant between the period 7th March, 2018 to 10th August, 2018.
III. Opposite party no.2 filed the res judicata proceedings in Complaint Case No. 14 of 2019 before the Additional Chief Judicial Magistrate, Bhadohi at Gyanpur, U.P. on 3rd January, 2019 on false, frivolous and mala fide allegations that on the assurance of the applicant, opposite party no.2 has agreed to invest a sum of Rs. 80,00,000/- from the month of September, 2013 to July, 2016.
IV. Opposite party no.2 had threatened the applicant to return not only the principle amount due but also added Rs. 7 lacs over and above the principle amount (which has already been paid) to which a parallel proceedings were initiated by her against the applicant by means of Complaint Case No. 2917 of 2018 before the Judicial Magistrate, First Class Pimpri at Pimpri, Pune (Maharashtra).
V. Prior to even establishing the right to recovery from the cheques in contention, it is disclosed that the entire amount of Rs. 80 lacs had already been paid to opposite party no.2 by the applicant through four cheques i.e. (i) cheque no. 111185 amounting to Rs. 14,00,000/-, (ii) cheque no. 36963 amounting to Rs. 25,00,000/-, cheque no. 36974 amounting to Rs. 16,00,000/- and cheque no. 123523 amounting to Rs. 25,00,000/-, which were issued from Dena Bank.
(VI) The agreement in the form of memorandum of understanding dated 16/17th August, 2017 entered into between the applicant and opposite party no.2, which has been so heavily relied upon by opposite party no.2 in support of her case is mere a waste paper and has no relevance in the eyes of law, as the same is an unregistered document. The opposite no.2 has not been appointed as a Director of the company either by any registered document or by the minutes of the meeting of the Board of Directors of the Company.
(VII) Even if it is accepted that opposite party no.2 invested the money in the company, the two parallel proceedings initiated by opposite party no.2 against the applicant in two parallel jurisdiction only substantiate that she is not only trying to threat the applicant but has also tried to extort money from the applicant and misuse the inhuman condition under which the company and proprietor are under going, by making various complaints before the Police and courts of law.
(VII) the validity of the legal notice sent by opposite party no.2 to the applicant is also in question as the same does not disclose the amount that has been received by opposite party no.2 prior to the issuance of cheques.
(VIII) A legal notice was sent to the applicant by opposite party no.2 through her advocate at his residence at Pune and thereafter she filed a complaint on 6th December, 2018 in the court of Judicial Magistrate, First Class, Pinpri, Maharashtra under Section 138 N.I. Act and subsequent to the same, for the similar contentions, which have been made in the aforesaid complaint, she filed a complaint in the Court of Additional Chief Judicial Magistrate, Bhadohi at Gyanpur (Uttar Pradesh), which is illegal in the eyes of law and the same should be quashed on the ground jurisdiction.
(IX) Opposite party no.2 has not been attentive in the legal proceedings prior to the involvement of the Hon'ble High Court. Either opposite party no.2 has to admit that she had granted personal loan to the applicant, which is not legal subject to such heavy amount or else accept, as per her own unregistered agreement which is treated as Memorandum of Understanding to be a financial creditor. If she is to be treated as financial creditor and the money was invested in the company situated at Pune, she has alternative remedy, which is available under Insolvency and Bankruptcy Code.
Learned counsel for the applicants, therefore, submitted that the present criminal proceedings initiated against the applicants are not only malicious but also amount to an abuse of the process of the Court.
On the cumulative strength of the aforesaid submissions, it is submitted by learned counsel for the applicants that the proceedings of the above mentioned complaint case are liable to be quashed by this Court.
7. Per contra, learned A.G.A. has opposed the contentions raised on behalf of the applicant by submitting that there is no illegality or infirmity in the impugned summoning order and the proceedings initiated by opposite party no.2 against the applicant under Section 138 N.I. Act. He, therefore, submits that the present application is liable to be rejected.
8. On the other-hand, learned counsel for opposite party no.2 raised following contentions for rejecting the present application under Section 482 Cr.P.C.:
(i) The accused-applicant is carrying business under the name and style of "M/s. Vishwakarma Dish Ends Works", which is a partnership firm and "M/s. Proficient Industries India Pvt. Ltd.", which is a private company. Both the firms are running at 81-B, General Block, MIDC Bhosari, Pune. The accused-applicant, who is one of the partner of the said firm and company, is a director and another director of the firm and company. The accused-applicant was in need of some finance for development of the said firm and company. Therefore, accused-applicant approached opposite party no.2, who was his family friend and well known to him. The accused-applicant requested opposite party no.2 to invest money in the said firm and company. The accused-applicant promised opposite party no.2 that if she invests Rs. 80 lacs in the said firm, he will include her as one of the partner in the said firm and give her 50% profit of the said firm on yearly basis. The accused-applicant also promised opposite party no.2 that he will also give 25% share in the land owned by the said firm and 25% share in the value of the machinery of the firm. The accused-applicant also promised opposite party no.2 that he will refund entire investment made by opposite party no.2 without any deduction at the time of her retirement from the said firm. On believing the said promise made by the accused-applicant, opposite party no.2 invested Rs. 80 lacs from September, 2013 to July, 2016 in the firm through accused-applicant. In the meantime, the business of the said firm was hugely affected, hence all the transactions and work of the said firm were stopped thereafter. Seeing the down fall of the said firm, when opposite party no.2 asked the accused-applicant that now her money will be drowned, he assured her not to worry, as he will appoint her as one of the Director of the said company and thereafter on 8th November, 2016, accused-applicant appointed opposite party no.2 as director of the said company. All the terms and conditions were dully reduced in writing by both the accused-applicant and opposite party no.2 titled as "Memorandum of Understanding" dated 17th August, 2017. The accused-applicant had also assured that due to hardship faced by the said company, he would pay Rs. 1,00,000/- per month to opposite party no2. from April, 2016 but he has not paid any single penny to her till date. A dispute arose between the accused-applicant regarding disclosure of books of accounts and balance-sheet, profit of the company by the accused-applicant to her. He had also refused to give 25% share in the land and value of the machinery of the said firm. When opposite party no.2 exerted pressure upon the accused-applicant that she will file police complaint against him and will also go to court of laws praying for justice against the wrongful acts and cheating done by the accused-applicant, he again promised her that he will return initial investment of Rs. 80,00,000/- to her which she had invested and he further promised to pay Rs. 87, 00,000/- to her towards shares against investment made by opposite party no.2 on assurance of the accused-applicant. In consideration of the aforesaid assurance given by the accused-applicant, he gave four cheques to her amounting to Rs. 80,00,000/- which were duly signed and issued by the accused-applicant in favour of opposite party no.2 in the capacity of one of the Director of the said firm and company. The accused applicant also accepted his legal liability to Rs. 87,00,000/- to opposite party no.2 against legal debt and against the said liability, he had issued and handed over various cheques amounting to Rs. 87,00,000/- to opposite party no.2 for discharging his legal liability. When the aforesaid four cheques amounting to Rs. 80,00,000/- were deposited by opposite party no.2 on 20th October, 2018 for encashment of the same in Kashi Gomti Smyut Gramin Bank, Branch Ugapur, Bhadohi where her bank account was maintained, the aforesaid four cheques were dishonoured and returned from the said bank with reasons "Funds Insufficient" as on 31st October, 2018 and intimation in that regard was duly received by opposite party no.2 on 16th November, 2018 from the said bank. Thereafter, on 22nd November, 2018, opposite party no.2 had issued legal notice through her advocate by registered A.D. to the accused-applicant at his official address as mentioned above, which was duly received by the accused-applicant on 26th November, 2019, a copy of which has been enclosed as Annexure-C.A.-2 to the counter affidavit filed on behalf of opposite party no.2. A legal notice has also been sent to the accused-applicant at his residential address, which was returned with remark unclaimed. Despite the legal notice having been received by the accused-applicant, he has not made any effort to make payment in respect of the above four dishonored cheques. It is further submitted that the said intention of the accused-applicant is to commit and play a fraud upon opposite party no.2 and indulge into cheating and criminal misappropriation. Thus, the accused-applicant caused wrongful loss to opposite party no.2 and wrong gain to him. Hence the accused-applicant has committed an offence of cheating. He has also failed to make payment of four dishonoured cheques which were issued by him in favour of opposite party no.2 despite legal notice being received by him, which makes out a case for an offence punishable under Section 138 N.I. Act against the accused-applicant, due to which she filed a complaint under Section 138 N.I. Act in the Court of Additional Chief Judicial Magistrate, Bhadohi at Gyanpur on 3rd January, 2019.
(ii) The Additional Chief Judicial Magistrate, Bhadohi at Gyanpur has the jurisdiction to try the complaint made by opposite party no.2 under Section 138 N.I. Act, as the four cheques amounting to Rs. 80,00,000/- duly signed and issued by the accused-applicant in favour of opposite party no.2 have been deposited at Kashi Gomti Smyut Gramin Bank, Branch Ugapur, Bhadohi where her bank account was maintained and the same have been dishonoured and returned to her with a remark "Funds Insufficient" as on 31st October, 2018 and information in that regard has been received by her on 16th November, 2019 from the Bank.
(iii) The Additional Chief Judicial Magistrate, Bhadohi at Gyanpur, after recording statement of the complainant under Section 200 Cr.P.C. and her witnesses under Section 202 Cr.P.C., perusing the entire evidence and after hearing the learned counsel for the applicant, has found that a prima facie case under Section 138 N.I. Act is made out against the accused-applicant. Thereafter, the The Additional Chief Judicial Magistrate, Bhadohi at Gyanpur has issued process of law against the applicant vide order dated 13th March, 2019, which is legal and justifiable in the eyes of law.
(iv) Opposite party no.2 has also filed another complaint bearing Complaint Case No. 2917 of 2018 before Judicial Magistrate, First Class, Pimpri, at Pimpri, Pune for dishnouring of cheque no. 000015 dated 31st August, 2018 amounting to Rs. 7,00,000/- which was also duly signed and issued by accused-applicant in favour of opposite party no.2, a copy of the complaint no. 2917 of 2018 has been enclosed as Annexure No.-C.A-6 to the counter affidavit filed on her behalf. In the said complaint case, non-bailable warrant has also been issued against the accused-applicant by the Judicial Magistrate, First Class, Pimpri. The said complaint case has been filed by the complaint at Pimpri Pune because the cheque no. 000015 amounting to Rs. 7,00,000/- drawn on 4111485003 Kotak Mahindra Bank Ltd. and as per the Bank rules, the jurisdiction of the Kotak Mahindra Bank is limited to territory of Maharashtra. Kotak Mahindra Bank is a private Bank.
(v) After selling properties, opposite party no.2 invested Rs. 80,00,000/- in the firm and company of the accused-applicant on his promise and the total liability is of Rs.87,00,000/-. Therefore, opposite party no.2 filed the present complaint case for dishonouring of four cheques amounting to Rs. 80,00,000/- at Bhadohi at Gyanpur and filed another complaint at Pimpri, Pune for dishnouring a cheque amounting to Rs. 7,00,000/-. Both the proceedings are separate proceedings initiated by opposite party no.2 against the accused-applicant for different cause of action. Therefore, the plea of learned counsel for the applicant that opposite party no.2 has initiated res judicta proceedings by means of present complaint filed by opposite no.2 has no legs to stand.
(v) The accused-applicant did not give any reply to the legal notice sent by opposite party no.2 for dishonouring of aforesaid four cheques amounting to Rs. 80,00,000/-. He has neither paid the same nor gave any reason for the same. In filing of the present complaint, opposite party no.2 has adopted all procedures known to law.
On the cumulative strength of the aforesaid contentions, learned counsel for opposite party no.2 has lastly submitted that the court below has not committed any error in passing the impugned order, therefore, do not call for any interference by this Court. Hence, he submits that the present application is liable to be rejected.
9. I have considered the submissions made by the learned counsel for the applicants and have gone through the records of the present application.
10. Before expressing any opinion on the merits of the case set up by both the parties, it would be worthwhile to reproduce Sections 118, 138 and 139 of the Negotiable Instrument Act, which are quoted herein-below:
"118. Presumptions as to negotiable instruments. --Until the contrary is proved, the following presumptions shall be made:--
(a) of consideration --that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date --that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance --that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer --that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of indorsements --that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamps --that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course --that the holder of a negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
138. Dishonour of cheque for insufficiency, etc., of funds in the account. --Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.]
139. Presumption in favour of holder.--It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
11. From the above, it is manifestly clear that a dishonour would constitute an offence only if the cheque is returned by the bank ''unpaid' either because the amount of money standing to the credit of the drawer's account is insufficient to honour the cheque or that the amount exceeds the amount arranged to be paid from that account by an agreement with that bank. Now, for an offence under Section 138 NI Act, it is essential that the cheque must have been issued in discharge of legal debt or liability by accused on an account maintained by him with a bank and on presentation of such cheque for encashment within its period of validity, the cheque must have been returned unpaid. The payee of the cheque must have issued legal notice of demand within 30 days from the receipt of the information by him from the bank regarding such dishonor and where the drawer of the cheque fails to make the payment within 15 days of the receipt of the aforesaid legal demand notice, cause of action under Section 138 NI Act arises.
12. From the Chapter XVII comprising Sections 138 to 142 of the Negotiable Instruments Act, which was introduced in statute by Act 66 of 1988, it is also apparently clear that the object underlying the provision contained in the said Chapter was aimed at inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business and day to day transactions by making dishonour of such instruments an offence. A negotiable instrument, whether the same is in the form of a promissory note or a cheque is by its very nature a solemn document that carries with it not only a representation to the holder in due course of any such instrument but also a promise that the same shall be honoured for payment. To that end Section 139 of the Act raises a statutory presumption that the cheque is issued in discharge of a lawfully recoverable debt or other liability. This presumption is no doubt rebuttable at trial but there is no gain saying that the same favours the complainant and shifts the burden to the drawer of the instrument (in case the same is dishonoured) to prove that the instrument was without any lawful consideration. It is also noteworthy that Section 138 while making dishonour of a cheque an offence punishable with imprisonment and fine also provides for safeguards to protect drawers of such instruments where dishonour may take place for reasons other than those arising out of dishonest intentions. It envisages service of a notice upon the drawer of the instrument calling upon him to make the payment covered by the cheque and permits prosecution only after the expiry of the statutory period and upon failure of the drawer to make the payment within the said period.
13. This Court having noticed the facts of the case and the evidence on the record needs to note the legal principles regarding nature of presumptions to be drawn under Section 139 of the Act and the manner in which it can be rebutted by an accused. Section 118 provides for presumptions as to negotiable instruments. The complainant being holder of cheque and the signature appended on the cheque having not been denied by the Bank, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption under Section 139 is a rebuttable presumption. Before this Court refers to various judgments of the Apex Court considering Sections 118 and 139, it is relevant to notice the general principles pertaining to burden of proof on an accused especially in a case where some statutory presumption regarding guilt of the accused has to be drawn.
14. A Three-Judge Bench of the Apex Court in the case of Kali Ram Vs. State of Himachal Pradesh, reported in (1973) 2 SCC 808 has laid down following:-
"23. ........................One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal."
15. Further the Apex Court in Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Pyarelal, reported in (1999) 3 SCC 35 had considered Section 118(a) of the Act and held that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable and defendant can prove the non-existence of a consideration by raising a probable defence. In paragraph No.12 following has been laid down:-
"12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non- existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist......"
16. In M.S. Narayana Menon Alias Mani Vs. State of Kerala and Another, reported in (2006) 6 SCC 39, the Apex Court had considered Sections 118(a), 138 and 139 of the Act, 1881 and held that that presumptions both under Sections 118(a) and 139 are rebuttable in nature. Explaining the expressions "may presume" and "shall presume" referring to an earlier judgment, following was held in paragraph No.28:-
"28. What would be the effect of the expressions "may presume", ''shall presume" and "conclusive proof" has been considered by this Court in Union of India v. Pramod Gupta, (2005) 12 SCC 1, in the following terms: (SCC pp. 30-31, para 52) "It is true that the legislature used two different phraseologies ''shall be presumed' and ''may be presumed' in Section 42 of the Punjab Land Revenue Act and furthermore although provided for the mode and manner of rebuttal of such presumption as regards the right to mines and minerals said to be vested in the Government vis-à-vis the absence thereof in relation to the lands presumed to be retained by the landowners but the same would not mean that the words ''shall presume' would be conclusive. The meaning of the expressions ''may presume' and ''shall presume' have been explained in Section 4 of the Evidence Act, 1872, from a perusal whereof it would be evident that whenever it is directed that the court shall presume a fact it shall regard such fact as proved unless disproved. In terms of the said provision, thus, the expression ''shall presume' cannot be held to be synonymous with ''conclusive proof'."
17. In view of the above, it is clear that the expression "shall presume" cannot be held to be synonymous with conclusive proof. Referring to definition of words "proved" and "disproved" under Section 3 of the Evidence Act, following was laid down by the Apex Court in paragraph No.30 of the aforesaid judgment:
"30. Applying the said definitions of "proved" or "disproved" to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon."
18. The Apex Court has already held that what is needed is to raise a probable defence, for which it is not necessary for the accused to disprove the existence of consideration by way of direct evidence and even the evidence adduced on behalf of the complainant can be relied upon. Dealing with standard of proof, following was observed in paragraph No.32:-
"32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies."
19. In Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, reported in (2008) 4 SCC 54, the Apex Court has held that an accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. Following was laid down in Paragraph No.32:-
"32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different."
20. The Apex Court again reiterated that whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". In paragraph No.34, following was laid down:-
"34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies."
21. In Kumar Exports Vs. Sharma Carpets, reported in (2009) 2 SCC 513, the Apex Court again examined as to when complainant discharges the burden to prove that instrument was executed and when the burden shall be shifted. In paragraph Nos. 18 to 20, following has been laid down:-
"18. Applying the definition of the word "proved" in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.
19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.
20. ........................The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist..............."
22. A Three-Judge Bench of the Apex Court in Rangappa Vs. Sri Mohan, reported in (2010) 11 SCC 441 had elaborately considered provisions of Sections 138 and 139. In the above case, trial court had acquitted the accused in a case relating to dishonour of cheque under Section 138. The High Court had reversed the judgment of the trial court convicting the accused. In the above case, the accused had admitted signatures on the cheque. This Court held that where the fact of signature on the cheque is acknowledged, a presumption has to be raised that the cheque pertained to a legally enforceable debt or liability, however, this presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. In Paragraph No.13, following has been laid down:-
"13. The High Court in its order noted that in the course of the trial proceedings, the accused had admitted that the signature on the impugned cheque (No. 0886322 dated 8-2- 2001) was indeed his own. Once this fact has been acknowledged, Section 139 of the Act mandates a presumption that the cheque pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. With regard to the present facts, the High Court found that the defence raised by the accused was not probable."
23. After referring to various other judgments of this Court, the Apex Court in that case held that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability, which, of course, is in the nature of a rebuttable presumption. In paragraph No.26, following was laid down:-
"26. In light of these extracts, 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. To that extent, the impugned observations in Krishna Janardhan Bhat, (2008) 4 SCC 54 may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. 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."
24. Elaborating further, the Apex Court has held that Section 139 of the Act is an example of a reverse onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the defendant-accused and the defendant- accused cannot be expected to discharge an unduly high standard of proof. In paragraph Nos. 27 and 28, following was laid down:-
"27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof.
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
25. Now this Court comes on the merits of the cases set up by the learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for opposite party no.2.
26. It is not the case of the applicant that four cheques bearing nos. 041564 dated 7th September, 2018, 041565 dated 14th September, 2018, 041566 dated 21st September, 2018 and 041567 dated 28th September, 2018 amounting to Rs. 80,00,000/- drawn on Dena Bank, Bhosari Branch-Pune have not been given by the accused-applicant to opposite party no.2 and the signatures appended on the aforesaid cheques were not of the accused-applicant. It is also not the case of the applicant that the aforesaid cheques were misplaced or stolen.
27. It is no doubt true that opposite party no.2 invested Rs. 80,00,000/- in the firm/company of the accused-applicant and when a dispute arose between them, for returning the said amount of Rs. 80,00,000/-, accused-applicant had given four cheques bearing nos. 041564 dated 7th September, 2018, 041565 dated 14th September, 2018, 041566 dated 21st September, 2018 and 041567 dated 28th September, 2018 amounting to Rs. 80,00,000/- drawn on Dena Bank, Bhosari Branch-Pune, which had been duly signed by the accused-applicant, were issued in favour of the complainant and he also requested the complainant to deposit the same in her bank accounts for withdrawal. It is also not disputed that the aforesaid cheques were deposited by opposite party no.2 on 21st October, 2018 i.e. within six months from the date issuance of the aforesaid four cheques, in her bank account maintained at for withdrawal of the money, but same have been dishonoured and returned from her bank with a remark "FUNDS INSUFFICIENT" as on 31st October, 2018 and intimation in that regard has been received by opposite party no.2 on 16th November, 2018. On receiving the said intimation about dishonour of the aforesaid cheques, opposite party no.2 sent legal notice to the accused-applicant through her Advocate on 22nd November, 2018 and the same has been received by the accused-applicant on 26th November, 2018, i.e. within fifteen days from the date of receiving of intimation from the bank about dishonour of cheques as provided under the provisions of N.I. Act. When the accused-applicant after receiving legal notice dated 22nd/26th November, 2018, has failed to pay the amount of dishonoured cheques within fifteen days, opposite party no.2 filed a complaint against the accused-applicant on 3rd January, 2019. From the aforesaid it is clear that all the ingredients provided under Section 138 N.I. Act are fully satisfied in filing of the complaint by opposite party no.2 against the accused-applicant. Therefore, a case for the offence punishable under Section 138 N.I. Act is made out against the accused-applicant.
28. The contention of opposite party no.2 that Additional Chief Judicial Magistrate, Bhadohi, Gyanpur has every right to try the complaint case filed by opposite party no.2 under Section 138 N.I. Act, has force, as her bank account has been maintained at Kashi Gomti Sanyukt Gramin Bank, Branch-Ugapur, District Bhadohi in which she had submitted the aforesaid four cheques issued and signed by the applicant in her favour and the same has been dishonoured and returned to her with remark "FUNDS INSUFFICIENT". Therefore, the territorial jurisdiction is limited to Judgeship Bhadohi at Gyanpur. It may also be noticed that the permanent addresses of opposite party no. 2 is Village-Jakkhini, Jakkhini Anish Tehsil, Rajatalab, District-Varanasi and Village-Jaddupur, Police Station-Aurai, District-Bhadohi-221201. It is, thus, clear that the Additional Chief Judicial Magistrate, Bhadohi, Gyanpur has every right to try the aforesaid complaint case as he has jurisdiction to do so. The Apex Court in the case of Dashrath Rupsingh Rathod Vs. State of Maharashtra reported in MANU/SC/0655/2014 has held that place, situs or venue of judicial enquiry and trial of offence must logically be restricted to where the drawee bank is located. The relevant portion whereof is being quoted herein below:
"To sum up:
(i) An offence under Section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank.
(ii) Cognizance of any such offence is however forbidden under Section 142 of the Act except upon a complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause (c) of proviso to Section 138.
(iii) The cause of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if
(a) the dishonoured cheque is presented to the drawee bank within a period of six months from the date of its issue.
(b) If the complainant has demanded payment of cheque amount within thirty days of receipt of information by him from the bank regarding the dishonour of the cheque and
(c) If the drawer has failed to pay the cheque amount within fifteen days of receipt of such notice.
(iv) The facts constituting cause of action do not constitute the ingredients of the offence under Section 138 of the Act.
(v) The proviso to Section 138 simply postpones/defers institution of criminal proceedings and taking of cognizance by the Court till such time cause of action in terms of clause (c) of proviso accrues to the complainant.
(vi) Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured.
(vii) The general rule stipulated under Section 177 of Cr.P.C applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the Court within whose jurisdiction the dishonour takes place except in situations where the offence of dishonour of the cheque punishable under Section 138 is committed along with other offences in a single transaction within the meaning of Section 220(1) read with Section 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Sections 184 and 220 thereof."
29. The contention of the learned counsel for the applicant that the present proceedings initiated by opposite party no.2 against the applicant under Section 138 N.I. Act in the court of Additional Chief Judicial Magistrate, Bhadohi, Gyanpur, are res judicata proceedings, as opposite party no.2 has already filed complaint case before the court of Judicial Magistrate, First Class-Pinpri at Pinpri (Pune) on 6th December, 2018, which is still pending consideration, has only been stated to be rejected on the ground that 'Res Judicata' means a case or suit involving a particular issue between two or more parties already decided by a court. Perusal of the both the complaint cases filed by opposite party no.2 against the applicant under Section 138 N.I. Act before the Court of Additional Chief Judicial Magistrate, Bhadohi, Gyanpur as well as before the Court of Judicial Magistrate, First Class-Pinpri at Pinpri (Pune), clearly indicates that both are for different dishnouring of cheques and for different amounts i.e. for different cause of action.
30. The next contention of the learned counsel for the applicant that opposite party no.2 has initiated parallel proceedings against the applicant by filing the present complaint case before the Court of Additional Chief Judicial Magistrate, Bhadohi, Gyanpur, as he has already initiated proceedings under Section 138 N.I. Act before the Court of Judicial Magistrate, First Class-Pinpri at Pinpri (Pune) has also no leg to stand, as opposite party no.2 has filed the present complaint case under Section 138 N.I. for dishnouring of four cheques bearing nos. 041564 dated 7th September, 2018, 041565 dated 14th September, 2018, 041566 dated 21st September, 2018 and 041567 dated 28th September, 2018 amounting to Rs. 80,00,000/-, whereas the complaint case filed by opposite party no.2 against applicant in the court Judicial Magistrate, First Class-Pinpri at Pinpri (Pune) for dishonouring of cheque no. 000015 dated 31st August, 2018 amounting to Rs. 7,00,000/-. It is therefore, apparently clear that both proceedings initiated by opposite party no.2 against the applicant under Section 138 N.I. are not parallel proceedings, both are for dishnouring of different cheques and different amount i.e. for different cause of action.
31. So far as the contention of the learned counsel for the applicant that the entire amount of Rs. 80 lacs had already been paid to opposite party no.2 by the applicant through four cheques i.e. (i) cheque no. 111185 amounting to Rs. 14,00,000/-, (ii) cheque no. 36963 amounting to Rs. 25,00,000/-, cheque no. 36974 amounting to Rs. 16,00,000/- and cheque no. 123523 amounting to Rs. 25,00,000/-, which were issued from Dena Bank, has no relevance in the facts of the present case, as any Court of law under the provisions of Section 138 N.I. Act can only see whether all ingredients mentioned in the said section are satisfied and prima facie a case for the offence punishable under the said Section is made out or not. As already noticed by this Court herein above, four cheques bearing nos. 041564 dated 7th September, 2018, 041565 dated 14th September, 2018, 041566 dated 21st September, 2018 and 041567 dated 28th September, 2018 amounting to Rs. 80,00,000/- drawn on Dena Bank, Bhosari Branch-Pune have been issued by the accused-applicant in favour of opposite party no.2, which have duly been signed by him and the same have been dishnoured and returned to her. Therefore, a prima facie case for the offence under Section 138 N.I. is made out against the applicant. However, it is open for the applicant to initiate such proceedings as he may be permissible under law for recovery of entire amount paid by him, if any, like he has already filed a suit in the Court Civil Judge (Senior Division), Pune against opposite party no.2 for payment of Rs. 38 lacs along with interest @ 8% per annum, a copy of plaint has been enclosed as Annexure-6 to the affidavit accompanying the present application.
32. So far as the last contention of the learned counsel for the applicant that the present proceedings initiated by opposite party no. 2 against the applicant are mala fide based on false and frivolous allegation, this Court finds that the contention made by the applicant's learned counsel call for adjudication on pure questions of fact which may adequately be adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. The issue whether it is appropriate for this Court being the Highest Court to exercise its jurisdiction under Section 482 Cr.P.C. to quash the summoning order and the entire proceedings of the aforesaid complaint case at the stage when the Magistrate has merely issued process against the applicant and trial is to yet to come only on the submission made by the learned counsel for the applicant that present criminal case initiated by opposite party no.2 are not only malicious but also abuse of process of law, has elaborately been discussed by the Apex Court in the following judgments:
(i) R.P. Kapur Versus State of Punjab; AIR 1960 SC 866,
(ii) State of Haryana & Ors. Versus Ch. Bhajan Lal & Ors.;1992 Supp.(1) SCC 335,
(iii) State of Bihar & Anr. Versus P.P. Sharma & Anr.; 1992 Supp (1) SCC 222,
(iv) Zandu Pharmaceuticals Works Ltd. & Ors. Versus Mohammad Shariful Haque & Anr.; 2005 (1) SCC 122,
(v) M. N. Ojha Vs. Alok Kumar Srivastava; 2009 (9) SCC 682,
(vi) Mohd. Allauddin Khan Vs. The State of Bihar & Others; 2019 0 Supreme (SC) 454,
(vii) Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh & Ors.; 2020 0 Supreme (SC) 45, and laslty
(ix) Rajeev Kaurav Vs. Balasahab & Others; 2020 0 Supreme (SC) 143.
33. In view of the aforesaid, this Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused-applicant, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint case filed by opposite party no.2 and the statements of the complainant and her witnesses under Sections 200 and 202 Cr.P.C. makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the summoning order and the entire proceedings of the aforesaid complaint case initiated against the applicant, as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.
34. The prayer for quashing the impugned summoning order dated 13th March, 2019 as well as the entire proceedings of the Complaint Case No. 14 of 2019 (Smt. Gyan Devi Vs. Ashok Ram Dular Vishwakarma) under Section 138 of Negotiable Instrument Act, Police Station-Aurai, District-Bhadohi, pending in the Court of Additional Chief Judicial Magistrate, Bhadohi, Gyanpur, are refused, as I do not see any abuse of the court's process at this pre-trial stage.
35. Accordingly, the present applicants is rejected. Interim order, if any, stands discharged.
(Manju Rani Chauhan, J.) Order Date :- 21.01.2021 Sushil/-