IMPORTANT POINTS
(1) Dishonour of cheque – At stage of issuance of process, statutory presumption under Section 139 of N.I. Act cannot be dislodged in a summary manner merely by contending that cheque issued was not for any legally enforceable debt or liability.
(2) Dishonour of cheque – Presumption mandated by Section 139 of N.I. Act includes presumption as regards existence of a legally enforceable debt or liability.

JUDGMENT

ATUL S. CHANDURKAR, J.

1. Leave granted.

2. On a complaint filed under Section 138 of the Negotiable Instruments Act, 1881 [For short, the N.I. Act], learned Metropolitan Magistrate on being satisfied that there was prima-facie material to proceed against the second respondent issued process on 17th June 2022. The second respondent invoked the revisional jurisdiction of the Sessions Court for challenging the said order. The Sessions Court was of the view that on the date of issuance of the cheque in question, there was no legally enforceable debt to be satisfied by the drawer. By the order dated 30th December 2022, it set aside the order passed by the learned Metropolitan Magistrate issuing process. The complainant approached the High Court of Bombay by filing a writ petition under Article 227 of the Constitution of India and challenged the order passed by the Sessions Court. The learned Single Judge, however, dismissed the writ petition observing that no error of jurisdiction was found in the impugned order. Being aggrieved, the complainant has challenged the aforesaid orders in this Criminal Appeal.

3. Shorn of necessary details, the facts relevant for considering the challenge as raised are that it is the case of the appellant that she had some disputes with her husband, Mr. Ashwin Natwarlal Sheth in the matter of alleged illegal and fraudulent transfer of shares pertaining to Sheth Developers and Realtors (India) Limited and Sheth Developers Private Limited. She had filed various complaints after which her husband commenced negotiations for amicable settlement of the disputes. On 12th January 2022, a final draft settlement agreement was finalised and drawn up between the parties. One of the terms of the settlement was that the appellant’s husband would gift to the appellant the fifth, sixth and seventh floor premises of Natwar Bungalow along with interest in a plot located in a Co-operative Housing Society. He also agreed to pay the appellant a sum of Rs.50 crores on executing a Declaration-cum-Indemnity document so as to withdraw the complaints filed by her against her husband. With a view to safeguard the interest of the appellant, the second respondent, who was a close friend of the appellant’s husband, agreed to act as a mediator and to keep the amount of Rs.50 crores in an escrow account till the actual payment was made by the appellant’s husband. Accordingly, on 12th January 2022, the second respondent issued Cheque No.080261 for an amount of Rs.50 crores in favour of the appellant. The appellant claims to have signed the document titled as Declaration-cum-Indemnity on 13th January 2022. It is the further case of the appellant that the sale of shares of the concerned entity was completed contrary to the settlement agreement and the appellant’s husband received the sale consideration. The appellant accordingly deposited the cheque that had been issued by the second respondent for encashment. However, on 06th April 2022, the said cheque was dishonoured and returned with the remark ‘payment stopped by drawer’. The appellant, on 20th April 2022, issued a notice under Section 138 of the N.I. Act to the second respondent. The said notice was replied by the second respondent on 04th May 2022, denying any liability to make such payment. The appellant gave her further reply to the second respondent and again called upon him to make the necessary payment. Since no further steps were taken by the second respondent, the appellant on 16th June 2022 filed a complaint against the second respondent under Section 138 of the N.I. Act.

4. Mr. Mukul Rohatgi, learned Senior Advocate for the appellant submitted that the Sessions Court erred in setting aside the order passed by the learned Metropolitan Magistrate issuing process on the premise that the dishonoured cheque had been issued for a debt that was not legally enforceable. According to him, on a plain reading of the complaint filed by the appellant under Section 138 of the N.I.