The legal provisions of the NI Act create a deeming offence for dishonour of cheques and establish a presumption of debt or liability upon the holder of the cheque, with a reverse onus cast on the accused to establish a probable defence based on preponderance of probabilities.

JUDGMENT

Aman Chaudhary, J. - The present petition under Section 482 Cr.P.C. has been filed seeking quashing of complaint No.6642 dated 16.07.2015, titled as 'Rajat Gupta vs. Tanvi Garg' under Section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act'), order dated 16.07.2015, Annexure P-2, passed by learned trial Court and order dated 19.09.2016 passed by learned Additional Sessions Judge, Chandigarh.

2. Briefly put, the facts as emerge from the complaint are that the complainant-respondent was stated to have been seeking guidance and instructions from the father of the petitioner for his preparation for civil services examination and interview. During that period, on a request made by the petitioner, he advanced a friendly loan to her. The cheque dated 02.06.2015, was issued for the discharge of the said liability, but on presentation thereof, it was dishonoured with remarks 'insufficient funds' vide memo dated 15.6.2015. This led to serving a legal notice dated 19.06.2015, sent through registered post of even date. Thereafter, complaint was filed on 13.07.2015, under Section 138 NI Act.

3. Learned counsel for the petitioner would contend that the summoning order has been passed without due application of mind. Submission next raised by him is that in the legal notice, Annexure P-7, the factum of amount having been loaned in two installments was mentioned to be as April/May, 2015, whereas in the complaint Annexure P-1, it was mentioned as April/ May, 2014. Thus, the legal notice, which is the basis of initiation of proceedings under Section 138 NI Act is in itself not valid. He further refers to the application seeking anticipatory bail, Annexure P-15 and the petition filed for quashing of FIR, Annexure P-16, lodged against the complainant-respondent, wherein it has been mentioned that the amount in question was advanced to the petitioner and her family, which is contrary to the averments made in the complaint, wherein it was stated that it was loaned to the petitioner. In wake of this, learned counsel would submit that there is no legally enforceable debt, arising in the case, once the complainant himself had specifically mentioned that it was an amount loaned to the petitioner as well as her family, as to why, the petitioner would issue a cheque to discharge the liability of her family, is not forthcoming. These documents are of the complainant-respondent himself, as such are of sterling quality, was his submission. The charges have been framed against the complainant-respondent in the FIR lodged under Section 380 IPC. The petition filed by the complainant-respondent seeking quashing of the aforesaid FIR was withdrawn by him before this Court, thereby the presumption raised against the petitioner stands dispelled and rebutted.

4. His further submission is that there is no averment in the complaint as to whether the amount was paid in cash or by way of cheque and the details of the amount or the dates of installments are also not reflected. The complainant-respondent being a student has not been able to demonstrate in the complaint as to whether he had the funds to advance the loan. Lastly, that in case the loan advanced by the complainant-respondent was by way of cash, the same would be in violation of the Section 269SS of the Income Tax Act. To buttress his submissions, reliance is placed on the judgments of Hon'ble The Supreme Court of India in the cases of M/s Pepsi Food Ltd. vs. Special Judicial Magistrate, 1997(4) RCR (Crl.) 761 and State of Orissa vs. Debendra Nath Padhi, 2005(1) RCR (Crl.) 297.

5. Contrarily, learned Senior Counsel submits that the FIR has not been lodged by the petitioner but is by her father, the allegations of having stolen the cheque have yet not been proved, as the evidence has still to be led during the course of trial. Furthermore, the averments made in the legal notice and the complaint, which are the basis of the prosecution under Section 138 NI Act, are absolutely clear that the lo