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IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
SUJOY PAUL, J.
Laxmi Devi Singhal - Appellant
Versus
Kailash Singhal - Respondent
Misc. Criminal Case Nos. 147 and 148 of 2014
Decided on : 27-10-2015
Advocate Appeared:
For the Appellant :Raja Sharma, Advocate
For the Respondent:Anmol Khedkar, Advocate
The main legal point established in the judgment is the presumption in favor of the holder of a cheque under Section 139 of the NI Act and the limited scope of interference at the stage of taking cognizance.
Headnote:
Section 138 of NI Act - Complaint Proceedings - 118, 139 - The court discussed the provisions of Section 118 and 139 of the Negotiable Instruments Act, which create a presumption in favor of the holder of a cheque. The court emphasized that this presumption is rebuttable and explained the burden of proof on the defendant to disprove the existence of consideration for the negotiable instrument. The court also highlighted the limited scope of interference at the stage of taking cognizance of the complaint.
Fact of the Case:
The petitioner challenged the proceedings of a complaint case filed under Section 138 of the Negotiable Instrument Act. The petitioner argued that there were contradictions in the pleadings and sought interference at an early stage.
Finding of the Court:
The court found that the necessary ingredients for taking cognizance under Section 138 of the NI Act were available in the body of the complaint. The court emphasized the presumption in favor of the holder of a cheque and the limited scope of interference at the stage of taking cognizance.
Issues: The issues involved the contradictions in the pleadings and the request for interference at an early stage of the complaint proceedings.
Ratio Decidendi: The court emphasized the presumption in favor of the holder of a cheque under Section 139 of the NI Act and the limited scope of interference at the stage of taking cognizance.
Final Decision: The petitions were dismissed with the observation that the petitioner is at liberty to put forth his defense before the court below.
Sujoy Paul, J.
In view of commonality of facts and issues involved, on the joint request, matters were analogously heard and are decided by this common order.
Facts are taken from M.Cr.C.147/2014
2. In these petitions filed under Section 482 of Cr.P.C the petitioner has called in question the proceedings of complaint case No. 6199/2013. Shri Raja Sharma, learned counsel for the petitioner, submits that court below has erred in passing the order dated 06.07.2013 whereby complaint preferred by respondent under Section 138 of Negotiable Instrument Act (NI Act) is directed to be registered. The present petitioner was served by issuing notice by registered and ordinary post. Criticizing this order, learned counsel for the petitioner submits that the respondent filed a complaint under Section 138 of NI Act. In para 4 and 5 of the complaint the description of cheques i.e. date, account number and amount etc were shown. It is further averred that said cheques were bounced. Bank gave finding that insufficient amount is there in the account. The said complaint was filed after undertaking necessary formalities.
3. Criticizing this order, Shri Raja Sharma submits that respondent/complainant filed a Civil Suit No. 59A/2012 before the District Judge, Shivpuri. Said suit was filed for declaration and permanent injunction. If the averments of the said suit is examined in juxta position to the averments of the compliant under Section 138 of NI Act, it will be clear that there are contradictions in the pleadings. He submits that for this reason, at this stage itself, interference can be made. He placed reliance on 2014 (13) SCC 553 (Rashmi Jain v. State of U.P.), 2006 (6) SCC 39 (M.S. Narayan Menon @ Mani v. State of Kerala and Anr.), 2012 (12) Scale 688 (Paramjeet Batra v. State of Uttarakhand and Ors.). Lastly, reliance is placed on (2014) 2 SCC 236 (John K. Abraham v. Simon C. Abraham and Anr.). On the strength of these judgments, it is contended that this Court may set aside the complaint proceeding at this stage itself.
4. Prayer is opposed by Shri Anmol Khedkar, learned counsel for the respondent. He submits that necessary ingredients for taking cognizance under Section 138 of N.I. Act are available in the body of complaint. The Court below has not committed any error of law in registering complaint and taking cognizance. He submits that at this stage no interference is warranted by this Court. It is open for the petitioner to put forth his defence at appropriate stage before the Court below. He submits that disputed questions of facts and law cannot be gone into at this stage. Reliance is placed on judgment of Supreme Court in (HMT Watches Ltd. v. M.A. Abida & Anr.) reported in 2015 Legal Eagle (SC) 242.
5. No other point is pressed by learned counsel for the parties.
6. I have heard the parties and perused the record.
7. Before dealing with the rival contentions advanced, it is apposite to quote relevant provision of NI Act., which reads as under :-
“118. Presumptions as to negotiable instruments. Until the contrary is proved, the following presumptions shall be made:
(a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
“139. Presumption in favour of holder. It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.”
8. A conjoint reading of these provisions makes it clear that there is a presumption of issuance of Negotiable Instrument in favour of the complainant. However, this presumption is a rebuttable presumption. Complainant, at appropriate stage, can rebut this presumption. This aspect is considered by this Court after taking stock of various Supreme Court judgments recently. The
