The main legal point established in the judgment is that the presumption under Section 139 of the Negotiable Instruments Act can only be drawn when the factual basis for the presumption is established, and Section 138 does not apply to cheques issued for uncertain future liabilities.

M.L. Mehta, J. (Oral) :—

This petition under Section 482 Cr. P.C. assails order dated 26.06.2010 and also seeks quashing of criminal complaint No. 463/2011 titled as “Leela Infrastructure & Mining Pvt. Ltd. Vs. Ms. Deepshikha Kumari”, pending in the Court of Metropolitan Magistrate-03, South-West.

2. The petitioner is facing prosecution in the afore-said criminal complaint filed against her by the respondent under Section 138 of Negotiable Instruments Act (for short, „the Act?), on the allegations that a cheque of Rs.2.5 crore, given by her towards discharge of her liabilities of self, and also as guarantor of her brother Shri Sangram Vijay Singh and sister Smt. Deepanjali Singh, was dishonoured on account of “insufficient funds” and, that she has not paid the cheque Crl. M.C.2348.2011 Page 1 of 12 amount despite legal notice dated 06.05.2010. The petition is filed for quashing of the aforesaid criminal complaint, as also the impugned order dated 26.06.2010 of the learned MM, whereby she has been ordered to be summoned. The grounds on which the quashing of the complaint and also the impugned order are sought are that the cheque in question was issued not towards discharge of any legally recoverable debt or liability for herself or as a guarantor, as alleged, for her brother and sister, but it was issued as a financial arrangement, that was arrived at between the parties by a Memorandum of Understanding (MOU) dated 05.10.2009. It was submitted that the presentation of the cheque in question was subject to contingency of encashment of cheque of Rs.75.00 lakh given by the respondent in the name of Smt. Madhuri Singh and, further the receipt of sale proceeds of the property bearing No. 54, Friends? Colony (East), New Delhi, in the account of the party of the First Part of the MOU. It was also submitted that the cheque in question was dated 05.10.2009, which was tampered with as dated 15.10.2009.

3. On the other hand, the submission of learned counsel for the respondent was that the cheque was given by the petitioner towards discharge of her liability and, that of other persons named in the MOU. It was submitted that as per Section 138 read with Section 139 of the Act, there was a presumption of the cheque having issued by the petitioner towards discharge of her legally recoverable debt or liability and thus, the onus to rebut the presumption was on the petitioner. It was also submitted that the defence which was sought to be taken by the petitioner could not be gone into at this stage and, could only be proved by trial.

4. For better understanding the controversy, it may be briefly noted that undisputedly MOU dated 05.10.2009 was arrived at between the petitioner and her other family members (as party of the First Part), and the respondent through its Chairman (as party of the Second Part) and Smt. Madhuri Singh (as party of the Third Part i.e. the Confirming Party). There was some dispute between the parties of the First Part and the Third Part i.e. the Confirming Party with regard to property bearing No. 54, Friends? Colony (East), New Delhi. The parties of the First Part and the Third Part were having several litigations with regard to this property. Ultimately, a settlement was sought to be arrived at between the parties for the sale of this property to the party of the Second Part i.e. the respondent and, that is how this MOU came to be executed between the three parties. Since this MOU is not in dispute and is the genesis of the cheque in question, it would be instructive to extract the relevant parts of the said MOU as under:

“And whereas the Parties of the First Part and the Confirming Party have arrived at an amicable settlement whereby the said Confirming Party has agreed to withdraw her application, accept and confirm the relinquishment deed dated 28th November, 1988 and treat the Memorandum of Family Settlement as satisfied and implemented on payment of a sum of Rs. 75,00,000/- (Fupees Seventy Five Lacs only) whic