Disputed questions of fact regarding the enforceability of a cheque under Section 138 of the NI Act cannot be adjudicated at the pre-trial stage; legal presumptions apply until evidence is presented.

ORDER :

J. C. DOSHI, J.

Though served, none appears for the respondent No.2.

1. By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code”) as well as under Article 227 of the Constitution of India, the petitioner has prayed for quashing and setting aside the proceedings of Criminal Case No.3532 of 2016 filed u/s 138 of the NI Act pending before the learned CJM, Ahmedabad Rural

2. Facts of the case are as under :-

2.1. Petitioner father approached to India from US alone by Doing Journey alone to Ahmedabad. With Consulting to Dr. Apurva Parekh petitioner took his father to respondent no.2 hospital for Dayalisis.

2.2 Petitioners father complained for generalized weakness and loss of appetite chills with rigors therefore again consulting to the Dr. Apurva Parekh, father of the petitioner again admitted in respondent no.2 Hospital.

2.2 Petitioner’s father due to the negligence of Doctors and hospital Staff, Fistula in the left hand of the petitioners father was infected during the process of dialysis and pus infected the blood due to which, infection caused in the lungs and intestine.

2.3 Petitioner shifted his father to Sardar Patel Hospital, where the operation was done and petitioner's father’s 2 feet intestine was removed due to infection.

2.4 Petitioner was given the Final bill of Rs 4,45,909/- out of which, during the period between 22-01-2017 till 4-02-2017, petitioner made payment 1,45,000/- at regular intervals and gave the cheque No. 000096 amounting to Rs.3,00,909/- to the respondent no.2. hospital for the final payment.

2.5 Petitioner sent advance notice to the respondent no.2 hospital that he has to take legal action against the respondent no.2 hospital and therefore, stopped payment by regd. post AD and same was received by the Resp. No.2 hospital on 12-04-2016, Cheque no. 000096 was deposited by the respondent no.2 hospital was returned due to stopped payment and not due to Insufficient funds.

2.6 Hence, Notice under section 138 of N.I Act was issued by the the respondent No.2 and same was refused and no reply was given by the petitioner to the respondent no.2 hospital.

2.7 Therefore, respondent no.2 hospital filed the criminal case no. 3532/2016 before the Rural Court Ahmedabad Chief Judical Magistrate Court No.16 2nd Addition Civil Judge & A.C.J.M.

2.8 Hence, present petition is filed to quash the proceedings of Criminal Case No.3532 of 2016.

3. Learned advocate for the petitioner would submit that the cheque in question was given to the respondent No.2 hospital towards payment to the hospital. However, due to negligency on the part of the respondent Hospital, the father of the petitioner has to suffer a lot. He would further submit that since there was clear negligency on the part of the respondent Hospital in treating the father of the petitioner, the petitioner has stopped payment of cheque, which was given to the Hospital towards payment for treatment of father of the petitioner. He would further submit that the complaint contains reason of insufficient funds for return of the cheque in question and since there is no legally enforceable debt existed on the date when the cheque in question was honoured, the petitioner may not liable to face the trial of criminal proceedings. Upon above submission, learned advocate for the petitioner prays to allow this petition.

4. Per contra, learned APP referring to judgment in case of Sunil Todi and others Vs. State of Gujarat , 2022(16) SCC 762 , particularly, para 30 to 34 and in case of Rathish Babu Unnikrishnan v. State (Govt. of NCT of Delhi) and Another, 2022 SCC OnLine SC 513, more particularly, para 8.13 and 16 to 19 would submit