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2018 Supreme(Raj) 2017
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Mr. Deepak Maheshwari, J.
Ankur Gugnaani @ Ankur Babbar - Appellant
Versus
State Of Rajasthan - Respondent
Criminal Misccellaneous (Petition) No. 5635 of 2017
Decided On : 24-01-2018
Mr. Vipin Sharma, Advocate, for the Petitioner; Ms. Meenakshi Pareek, PP and Mr. Rinesh Gupta, Advocate, for the Respondents
The presumption of consideration under Section 118 and 138 of the Negotiable Instruments Act should be drawn at the stage of framing of charges, and the accused's defense can be raised at the appropriate stage during the trial.
Headnote:
Negotiable Instruments Act - Cognizance of Cheque Bounce Case - Presumption of Consideration
Fact of the Case:
The petitioner sought to quash the orders taking cognizance for the offence under Section 138 of the Negotiable Instruments Act against him. The petitioner argued that the complainant had not come with clean hands and that a substantial part of the amount due had already been paid. The respondent contended that the cheque was issued to repay a loan and that the presumption of consideration under Section 118 of the Act should apply.
Finding of the Court:
The court found that the presumption of consideration under Section 118 and 138 of the Negotiable Instruments Act should be drawn at the stage of framing of charges. It held that the defence case can be set up by the accused at an appropriate stage during the trial. The court concluded that no interference was required with the orders taking cognizance and the revisional court's decision.
Issues: The issues revolved around the presumption of consideration for the cheque issued, the petitioner's defense of having already paid a substantial amount, and the relevance of a previous FIR filed against the petitioner.
Ratio Decidendi: The court emphasized the importance of the presumption of consideration under Section 118 and 138 of the Negotiable Instruments Act and held that the accused's defense could be raised at the appropriate stage during the trial.
Final Decision: The miscellaneous petition was dismissed, upholding the orders taking cognizance for the offence under Section 138 of the Negotiable Instruments Act and the revisional court's decision.
JUDGMENT
Mr. Deepak Maheshwari, J. - Heard learned counsel for the petitioner as also for the respondent.
2. Though the matter has been listed to be referred to the Lok Adalat but counsel for petitioner submits that it is not a fit case for being referred to Lok Adalat. The matter is being been heard and decided on merits on the prayer jointly made by both sides.
3. This misc. petition has been moved with the prayer to quash and set aside the orders dated 26.01.2016 and 07.06.2017 whereby the trail Court took cognizance for the offence under Section 138 Negotiable Instruments Act, 1881 against the petitioner and the revision preferred against the said order was rejected by revisional Court.
4. Learned counsel for the petitioner submits that the complainant has not come with clean hands and earlier to filing this complaint, FIR No. 13/2016 was also filed at P.S. Lal Kothi for the offence under Sections 420, 406, 467, 468 and 120-B IPC against the petitioner. After investigation Final Report was submitted by the concerned police station. The protest petition preferred against the said FR (negative report) was rejected by the competent Court and FR came to be accepted vide order dated 17.11.2017. Counsel for the petitioner admits that the cheque was issued by the petitioner for a sum of Rs. 24 Lacs in favour of the respondent, but he submits that substantial part of the amount due towards complainant was earlier paid by the petitioner to him. Counsel for the petitioner has placed his emphasis on the point that the whole amount of cheque was not due to be paid and was not an enforceable debt. Counsel for the petitioner submits that the amount which was earlier paid by him to the complainant was also included in the cheque amount i.e. Rs. 24 Lacs and thus exceeding the amount which was due to be paid to the complainant respondent.
5. Per contra, learned counsel for the complainant-respondent submits that the complainant advanced the loan amount to the partnership firm run by the petitioner along with some other persons. In order to repay the amount, a post dated cheque No. 188645 was issued for a sum of Rs. 24 Lacs in favour of the complainant which came to be dishonoured. Counsel for the complainant-respondent further submits that as per section 118 of the Negotiable Instruments Act, the presumption is to be drawn in regard to the consideration for which the instrument is issued. He further contends that it is an admitted fact that the cheque was drawn by him in favour of complainant which came to be dishonoured. Counsel for the respondent submits that FIR No. 13/2016 was registered for the offence under Sections 420, 406, 467, 468 and 120-B IPC whereas, the complaint filed for the offence under section 138 of N.I. Act is altogether a different issue. If the FR (negative report) was submitted in the said FIR No. 13/2016, it does not have any bearing on the complaint filed for the offence under section 138 of N.I. Act.
6. In support of his arguments, counsel for the petitioner relied upon the judgment M/s Bellary Steels and Alloys Ltd. and Anr. v. M/s Vandana Ispat Private Ltd. and Anr. rendered by chattisgarh High Court. On going through the said judgment, it appears that in that matter, when the cheque in question was returned with the endorsement "please present again" a Demand Draft of Rs. 14 Lacs was dispatched by the accused to the complainant with the request to return the original cheque. But despite receiving the amount through bank draft, the cheque was again presented for encashment which was dishonoured. In such facts and circumstances, the Court came to the rescue of the accused-petitioner under Section 482 Cr.P.C., 1973 However, in the present case in hand, there is no such case that after dishonourment of the cheque, any amount came to be paid by the accused-petitioner to the complainant.
7. Counsel for the respondent has relied upon judgment of Coordinate Bench of this Court rendered in Shiv Charan Khandelwal v. Stat
