ORAL ORDER

1. Heard Mr. Akash A. Singh, learned counsel for and on behalf of the applicant.

2. This application is filed under Article 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. to quash the proceedings of criminal case no.7696 of 2019 pending before the 5th Additional Chief Judicial Magistrate at Gandhinagar. The applicant herein has also challenged the order dated 15.10.2022 whereby, during the cross-examination of the complainant, the trial Court has denied the permission to ask the certain questions to be asked to the complainant.

3. After arguing for some time, the learned counsel on instructions, does not press the relief with respect to quashing of the criminal case, and he is pressing the only relief pertaining to denial of the permission, certain questions to be asked to the complainant. In that view of the matter, the relief claimed in terms of para-10(b) and (c) stands dismissed. 4. The Criminal Case is filed by the respondent no.2 under the provisions of Negotiable Instruments Act. The complainant being head of the HUF, has initiated the proceedings for dishonour of cheque. On 15.10.2022, the case was fixed for cross-examination of the complainant. During the cross- examination, the defense lawyer has asked some questions with respect to administration of the HUF. The learned trial Court refused to allow the defense lawyer to ask following questions:

Question No.1: You have not joined the accused in his personal capacity? The trial Court did not allow the defense lawyer to ask this question mainly on the ground that, the accused has been joined as partner of Vijay Group Infra.

Question No.2 How many persons to whom you have given loan? The trial Court refused to ask the question, holding that, the facts of the transactions entered into with third party are not relevant.

5. In the aforesaid facts, the applicant herein has preferred the present application to quash and set aside the order of the trial Court not allowing the defense lawyer to ask necessary and relevant questions.

6. Learned counsel Mr. Akash Singh submitted that, the applicant herein is facing the trial under the provisions of Negotiable Instruments Act. The learned trial Court has failed to take into consideration the legal aspect that, in the case of trial of offence under Section 138 of the N.I. Act, the duty is casted upon the accused to rebute the presumption. Therefore, if the defense is not given fullest opportunity to lead the evidence for the purpose of rebut the said presumption and to falsefy the case of the complainant, it would not be possible for the defense to put their case properly unless and until, the fair opportunity for impeaching the credit of the witnesses being given. In the facts of the present case, the questions asked by the defense counsel are necessary to impeach the credibility of the complainant and test veracity and genuineness of the deposition.

7. In view of the aforesaid contention, learned counsel Mr. Akash Singh would submits that, the order impugned disallowing the questions as referred above, be set aside and in the interest of justice, the defense may be allowed to ask the aforesaid questions to the complainant.

8. Having regard to the facts and circumstances of the present case, it is no doubt true that, the applicant is facing the criminal proceedings for dishonour of cheque. In view of Section 139 of N.I. Act, it is obligatory on the trial Court to presume the liability of the drawer for the amount of the cheque in every case where the factual basis for such presumption is established. The Act raises two presumptions:

firstly, in regard to the passing of the consideration as contained in Section 118(a) and secondly, a presumption that, the holder of cheque received the cheque of the nature referred in Section 138 for the discharge, in whole, or in part, of any date or other liability. The presumptions both under Section 118(a) and 139 are rebuttable in nature, whereas, the standard of p