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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
SANJAY KUMAR PACHORI
Gaurav Sharma – Appellant
Versus
State of U.P. – Respondent
JUDGMENT :
SANJAY KUMAR PACHORI, J.
1. As in both the cases, common questions of fact and law arises between the same parties with regard to same subject matter, therefore, above noted cases are being decided by a common judgment.
Brief facts of Application U/S 482 No. 4834 of 2022
2. The Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as “Cr.P.C.”) has been filed to quash the entire proceedings of Complaint Case No. 114 of 2020 ( Gaurav Sharma Vs. Ankit Agarwal ) under Section 138 of Negotiable Instruments Act, (hereinafter referred as “N.I. Act”), Police Station-Tajganj, District Agra, as well as cognizance/summoning order dated 22.02.2021 pending in the court of Additional Chief Judicial Magistrate, Agra.
2(i) Complaint Case No. 114 of 2020 has been filed alleging that the applicant and opposite party no. 2 had been running a partnership business by the name of Bankey Bihari Vidhya Mandir and the opposite party no. 2 decided to end the partnership and withdraw his share, in pursuance thereof, it was decided that a sum of Rs. 38,95,193/- would be paid by the applicant. It is further alleged that a cheque bearing no. 105359 dated 25.9.2020 ha
The court determined that a legally enforceable debt existed at the time of the cheque's issuance, validating the complaints under Section 138 of the Negotiable Instruments Act.
A cheque issued as security does not create criminal liability under Section 138 unless there is a legally enforceable debt at the time of its issuance.
A legally enforceable debt must exist at the time of cheque presentation for liability under Section 138 of the N.I. Act to arise.
Obligations under a Memorandum of Understanding can establish legally enforceable debt, relevant to Section 138 of the NI Act.
Point of law: Question whether a post-dated cheque is for “discharge of debt or liability” depends on the nature of the transaction.
Dishonour of cheque – If drawer of cheque pays a part or whole of sum between period when cheque is drawn and when it is encashed upon maturity, then legally enforceable debt on date of maturity woul....
The issuance of a cheque signifies a legally enforceable debt under Section 138 of the N.I. Act, and the burden to prove otherwise lies with the accused, not the complainant.
Accused failed to rebut the presumption of debt under Section 139, leading to acquittal being upheld despite dishonoured cheques. Evidence must sufficiently support claims of payment to avoid prosecu....
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