BOMBAY HIGH COURT
S.S. Shinde J.
Nazim Karim Mumbrawala – Petitioner
versus
Keshava Prasad H.A. and Anr. – Respondents
Criminal Writ Petition No.886 of 2019 along with Criminal Writ Petition No.887 of 2019 along with Criminal Writ Petition No.888 of 2019 along with Criminal Writ Petition No.889 of 2019
Decided on 3.10.2019

IMPORTANT POINT
Dishonour of cheque – Onus lies upon accused to rebut presumption and to establish that cheques in question were not given in respect of any debt or liability, with standard of proof being preponderance of probabilities.

Headnote:

Negotiable Instruments Act, 1881 – Section 138 read with Sections 118 and 139 – Dishonour of cheque – Post-dated cheques – Issuance of processes – Though it is case of Petitioner that they have documentary proof of having paid entire amount to complainant by giving him bearers cheques in his name which was encashed by complainant from bank by singing on backside of bearer cheques in presence of bank employee and complainant has identified his signature, that will have to be proved in trial by adducing necessary evidence in that regard – At the stage of taking cognizance and summoning or issuing process, Magistrate is required to apply his judicial mind only with a view to taking cognizance of offence – Magistrate has to find out whether a prima facie case has been made out or not, and Magistrate is not required to evaluate merits of material or evidence in support of complaint – Complainant has succeeded in showing that all essential ingredients of offence under Section 138 have been attracted – Onus lies upon accused to rebut presumption and to establish that cheques in question were not given in respect of any debt or liability, with standard of proof being preponderance of probabilities – As signature in cheque is admitted to be that of accused, presumption envisaged in Section 118 of Act can legally be inferred that cheque was made or drawn for consideration on the date which cheque bears – Section 139 of Act enjoins on court to presume that holder of cheque received it for discharge – Writ petitions rejected.

Held: Though it is the case of the Petitioner that they have documentary proof of having paid the entire amount to the complainant by giving him bearers cheques in his name which was encashed by the complainant from the bank by singing on the backside of the bearer cheques in the presence of bank employee, and the complainant has identified his signature, that will have to be proved in the trial by adducing necessary evidence in that regard. It is a settled law that at the stage of taking cognizance and summoning or issuing process, the Magistrate is required to apply his judicial mind only with a view to taking cognizance of the offence, In other words, the Magistrate has to find out whether a prima facie case has been made out or not, and the Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint. In this context a useful reference could be made to the recent judgment of the Supreme Court in the matter of Sau. Kamal Shivaji Pokarnekar v/s. State of Maharashtra and others, AIR 2019 SC 847 wherein the Supreme Court has taken a view that quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. Paragraphs 4, 5 and 6 and 9 of the Judgment are relevant and for the sake of ready reference the same are reproduced herein under:-

4. The only point that arises for our consideration in this case is whether the High Court was right in setting aside the order by which process was issued. It is settled law that the Magistrate, at the stage of taking cognizance and summoning, is required to apply his judicial mind only with a view to taking cognizance of the offence, or in other words, to find out whether a prima facie case has been made out for summoning the accused persons. The learned Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint, because the Magistrate must not undertake the exercise to find out whether the materials would lead to a conviction or not.

5. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere.

6. Defences that may be available, or facts/aspects which when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At that stage, the only question relevant is whether the averments in the complaint spell out the ingredients of a criminal offence or not.

9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents. A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted.” (underlines added)

Considering the material on record, the complainant has succeeded in showing that all the essential ingredients of offence under Section 138 have been attracted. It is a settled law that onus lies upon the accused to rebut the presumption and to establish that the cheques in question were not given in respect of any debt or liability, with the standard of proof being preponderance of probabilities. As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge.

In view of the aforesaid facts and circumstances, prima facie the complainant has succeeded in showing that the accused has issued the cheques in discharge of legally enforceable liability, which were dishonoured on their presentation, and that the Petitioner accused failed to make payment of the cheques. The complainant has issued demand notice dated 08/02/2017 calling upon the accused to make the payment of the cheques, and when the notice was returned as undelivered with post remarked unclaimed, the complainant sent a notice on the second address of the Petitioner which was neither return nor the advocate of the complainant has received any acknowledgment thereof. According to the complainant in spite of the receipt of demand notice dated 08/02/2017, the accused failed to make the payment of the said cheques within the stipulated period. On the face of the complaint and, considering the act of the Petitioner by stopping the payment of the cheques issued in favour of the complainant, and having regard to the material and documents placed on record, it can be said that the ingredients of the alleged offences have been attracted. Whether the cheques obtained by the complainant from the Petitioner under duress or coercion and/or whether the documents signed by the Petitioner under pressure will be the issue that has to be decided in the trial after adducing evidence by parties. Hence the orders of issuance of process passed by the learned Magistrate do not require any interference.

In the light of the aforesaid discussion, this Court is of the considered opinion that, no case for interference in the impugned orders is made out. There is no merit in the Writ Petitions. The Writ Petitions stand rejected. Rule in all the Writ Petition stands discharged. – – – – – (Paras 15, 18, 19 and 20)

Result: Writ Petitions rejected.