The main legal point established in the judgment is the automatic presumption in favor of the holder of a cheque under Section 139 of the Negotiable Instruments Act, 1881, and the limitation on examining disputed questions of facts in proceedings under Section 482 of the Code.

JUDGMENT :

Challenge in this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short “the Code”) is to an order dated 21.01.2019 passed in Complaint Case No. 8523 of 2018, M/S Tanuk Pharma India Limited Vs. M/S Lords Creative Infra Solutions Pvt. Ltd. and others, by the court of learned IVth Additional Chief Judicial Magistrate, Dehradun, District Dehradun (for short “the Case”). By this impugned order, the petitioners have been summoned under Sections 138 of the Negotiable Instruments Act, 1881 (for short “the Act”).

2. Heard learned counsel for the parties through video conferencing and perused the record.

3. Facts necessary for disposal of the instant petition are as hereunder:-

The respondent no.2 filed a complaint under Section 138 of the Act against the petitioners. According to the complaint, the parties entered into an agreement on 28.09.2016. In pursuance thereof, a cheque amounting to Rs.1 crore was given by the respondent no.2 to the petitioners. When the petitioners did not honour the terms of the agreement, they gave a cheque of Rs.1 crore to the respondent no.2, which on presentation was dishonoured. Notice was given, but the amount of cheque was not paid. Hence, the present complaint has been filed. After conducting enquiry, by the impugned order, the petitioners and one another have been summoned under Section 138 of the Act. Aggrieved by it the instant petition has been filed.

4. Learned Senior counsel for the petitioners would raise the following points in his submission:-

(i). The summoning order is bad in the eyes of law because to arrive at a conclusion that prima-facie, case is made out, the agreement was never perused by the Court; without perusal of the agreement, it could not have been detected that any terms of the agreement was ever violated by the petitioners.

(ii). It was a case of ‘stop payment’ and not a case of dishonor of cheque, due to insufficient funds.

(iii). The cheque was given as a security. The petitioners wanted the security cheque back from respondent no.2. When the cheque was not returned by the respondent no.2, in fact, the petitioners complained it to the Senior Superintendent of Police, District Alwar, Rajasthan.

(iv). It has not been shown that the cheque was given for discharge of any debt or liability.

(v). The agreement was executed in the year 2016, and on that date itself, the cheque was given as post-dated cheque. It has been pleaded by the petitioners in their petition, which reflects that, in fact, on the date when cheque was given, there was no existing debt or liability. In support of his contention leaned counsel for the petitioners placed reliance on the principles of law as laid down by the Hon’ble Supreme Court in the case of Sampelly Satyanarayana Rao Vs. Indian Renewable Energy Development Agency Limited, (2016) 10 SCC 458.

(vi). Since, there was no existing debt or liability, there is no question of presumption under Section 139 of the Act.

(vii). In the proceedings under Section 482 of the Code, the Court should consider the documents to find out as to whether continuance of the criminal proceedings would amount to an abuse of process of Court. In support of his argument, learned counsel has placed reliance on the principle of law as reported in the case of HMT Watches Ltd. Vs. M.A. Abida and another, (2015) 11 SCC 776.In para 11 of the judgment in the case of HMT Watches Ltd. (supra) the principles laid down in the case of Suryalakshmi Cotton Mills Ltd. Vs. Rajvir Industries Ltd., (2008) 13 SCC 678, has been referred to, wherein, it was, inter-alia, held that “It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of criminal proceedings would amount to an abuse of process of court….”

5. On behalf of the respondent learned senior counsel would argue that the cheque is not post-dated; parties entered into an agreement on 28.09.2016