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SUPREME COURT OF INDIA
R. BANUMATHI, A.S. BOPANNA, JJ.
Rajeshbhai Muljibhai Patel And Others Etc. – Appellants
Versus
State of Gujarat and Another Etc. – Respondents
Criminal Appeal Nos. 251-252 of 2020 (Arising out of SLP(Crl.) Nos.142-143 of 2019)
Decided On : 10-02-2020
(a) Administration of justice - Civil and criminal proceedings - Issue of genuineness of signatures on receipts pending in a summary suit in civil court - Based on handwriting expert’s opinion in summary suit FIR lodged for forging signatures on the receipts - High Court declining to quash the FIR - Not proper - In view of pendency of the issue in summary suit the FIR ought not to have been allowed to continue. (Para 18)
(b) Indian Evidence Act, 1881 - Section 45 and 73 - In terms of section 45 opinion of handwriting expert is a relevant piece of evidence; but not a conclusive evidence - Section 73 empowers the court to compare the signature to form its own opinion. (Para 19)
Code of Criminal Procedure, 1973 - Section 154 and 482 - FIR ought not to have registered on basis of opinion of hand writing expert - Continuation of such FIR would amount to abuse of the process of Court. (Para 19)
(c) Negotiable Instruments Act, 1881 - Section 138 and 139 - Admission/estaablishment of issuance of cheque - Presumption arises under Section 139 in favour of the holder of cheque - Presumptions under Section139 of the N.I. Act and Section 118(a) of Indian Evidence Act are rebuttable - Burden lies upon the accused to rebut the presumption by adducing evidence. (Para 20)
(d) Negotiable Instruments Act, 1881 - Section 138 and section 482, Code of Criminal Procedure, 1973 - Complaint u/s 138 requiring adjudication of disputed questions of fact - Ought not be quashed u/s 482. (Para 20)
Facts of the case:
Accused Yogeshbhai in discharge of his liability issued cheques bearing Nos.8108 and 8109 of NRO Account No.08540107512 on 12.10.2015 and cheque Nos.20801 and 20802 of NRE Account No.085401000566 on 30.10.2015 in favour of appellant no. 3.
Two cheques bearing Nos.8108 and 8109 dated 12.10.2015 of NRO Account No.08540107512 amounting to Rs.30,00,000/-each were dishonoured on the same day i.e. on 12.10.2015 on the ground of “Payment stopped by the Drawer”. The third cheque was of NRE Account No.085401000566 with cheque bearing No.20801 dated 30.10.2015 amounting to Rs.30,00,000/-and the fourth cheque was also of NRE Account No.085401000566 with cheque bearing No.20802 dated 30.10.2015 amounting to Rs.30,00,000/-. When those two cheques drawn on NRE Account No.085401000566 were presented before the Bank on the same day i.e. on 30.10.2015, those cheques were also returned on the same day with the endorsement “Payment stopped by the Drawer”. Thereafter, appellant No.3 sent a legal notice to Yogeshbhai on 17.11.2015 demanding payment of money which notice was delivered on 23.11.2015.
Insofar as dishonor of cheques of NRO Account, the Complainant issued notice after 35 days, on 17.11.2015 and therefore, claim qua these two cheque are barred by limitation. The complaint therefore, pertains only for cheque Nos.20801 and 20802 of NRE Account No.085401000566 which were returned unpaid on 30.10.2015. A bailable warrant was issued for production of accused Yogeshbhai.
Appellant No.3-Hasmukhbhai has filed a Special Summary Suit for recovery of Rs.1,20,00,000/-. The Court in that case has issued summons for appearance against Yogeshbhai and Mahendrakumar which has been served on 01.11.2015.
Appellant no. 3 also filed a FIR, stating that Yogeshbhai, who is residing in United Kingdom had executed a power of attorney dated 14.03.2013 in favour of Mahendrakumar for administration of his lands. On the basis of this power of attorney, Mahendrakumar executed an Agreement to Sale in favour of one Jigneshbhai Dhanesh Chandra Shah on 16.04.2013. Thereafter, Yogeshbhai came from London and executed a registered Sale Deed No.1229/2013 dated 16.07.2013 in favour of M/s Brentwood Industries India Pvt. Ltd. for Rs.6,16,44,000/-. In the sale deed, the agreement to sale holder has signed as confirming party. In consideration of the sale deed, the land owner was to receive Rs.6,16,44,000/-and the confirming party-Jigneshbhai was to receive Rs.1,13,94,000/-. Yogeshbhai is the elder brother of appellant No.1-Rajeshbhai. Appellant No.1 had filed a Special Civil Suit claiming his share in the said land sold by Yogeshbhai. The said suit was compromised between appellant No.1 and Yogeshbhai in London and Yogeshbhai was to pay Rs.90,00,000/-to Rajeshbhai-appellant No.1. Appellant No.1 agreed to issue NOC and promised that his power of attorney holder-appellant No.2-Vipulkumar Hasmukhbhai Patel will issue NOC. Accordingly, Yogeshbhai had come from London and his power of attorney holder-appellant No.2-Vipulkumar executed NOC letter. There was various correspondence between the parties and the company M/s Brentwood Industries India Pvt. Ltd. regarding payment of said Rs.90,00,000/-.
Appellants No.1 to 3 filed Criminal Misc. Application before the High Court under Section 482 Cr.P.C. for quashing of FIR No.I-194/2016. Yogeshbhai who is the accused in the criminal case being C.C.No.367/2016 also filed Criminal Misc. Application No.24588/2017 for quashing of cheque case filed against him under Section 138 of N.I. Act.
The High Court dismissed Criminal Misc. Application No.2735/2017 and declined to quash the FIR No.I-194/2016.
On the basis of order passed in Criminal Misc. Application No.2735/2017, the Criminal Misc. Application No.24588/2017 filed by Yogeshbhai was allowed and the criminal case in C.C.No.367/2016 filed by appellant No.3-Hasmukhbhai under Section 138 of N.I. Act was quashed.
Finding of the Court:
Complaint u/s 138 ought not be quashed and FIR ought not be allowed to continued.
Result: Criminal Misc. Application No.2735/2017 allowed and Criminal Misc. Application No.24588/2017 dismissed
Key Points: - The FIR should not have been registered based solely on the handwriting expert's opinion when the genuineness of the receipts is already under adjudication in a civil suit (!) (!) . - The opinion of a handwriting expert is relevant evidence but not conclusive; the court may compare disputed and admitted writings under Section 73 to form its own opinion (!) . - Once the issuance of a cheque is admitted, a presumption arises under Section 139 in favor of the holder, which the accused must rebut (!) . - A complaint under Section 138 seeking adjudication of disputed facts should not be quashed under Section 482 merely due to inter-se civil disputes (!) . - Continuation of the FIR in such circumstances amounts to an abuse of the court's process (!) . - The burden lies on the accused to rebut the statutory presumption by producing evidence (!) . - The High Court erred in quashing the criminal case filed under Section 138 of the Negotiable Instruments Act (!) .
JUDGMENT :
R. BANUMATHI, J.
1. Leave granted.
2. These appeals arise out of the impugned judgment dated 14.12.2018 passed by the High Court of Gujarat at Ahmedabad dismissing Criminal Misc. Application No.2735/2017 thereby declining to quash the FIR No.I-194/2016. By the same order, the High Court has allowed Criminal Misc. Application No.24588 of 2017 and quashed the criminal case in C.C.No.367/2016 filed by appellant No.3-Hashmukhbhai Ravjibhai Patel against accused Yogeshbhai Muljibhai Patel under Section 138 of N.I. Act.
3. Brief facts which led to the filing of these appeals are as under:-
Appellant No.1-Rajeshbhai Muljibhai Patel is the real brother of Yogeshbhai Muljibhai Patel who is the accused in C.C.No.367/2016 filed under Section 138 of N.I. Act by appellant No.3-Hashmukhbhai Ravjibhai Patel. Both appellant No.1-Rajeshbhai and his brother Yogeshbhai are stated to be residents of United Kingdom. In this appeal, appellant No.1-Rajeshbhai is represented through his Power of Attorney holder-appellant No.2-Vipulkumar Hasmukhbhai Patel. Respondent-Yogeshbhai is represented through his Power of Attorney holder-another respondent-Mahendrakumar Javaharbhai Patel.
4. On 08.12.2015, appellant No.3-Hasmukhbhai Ravjibhai Patel filed a criminal case being C.C.No.367/2016 against accused Yogeshbhai under Section 138 of N.I. Act. The father of appellant No.1-Rajeshbhai and Yogeshbhai had agricultural lands bearing Block/Survey Nos.534, 536/1/A, 536/1/B, 538, 539, 540, 541/1, 542 and 543 situated at Village Fofaliya, Ta. Dabhoi, District Vadodara. In 2010, in order to sell his father’s land, Yogeshbhai called up appellant No.3 who is also the maternal uncle of Yogeshbhai and Rajeshbhai. Since appellant No.3 was also planning of buying some agricultural land from the surplus funds which he has received from the sale of his agricultural land, he accepted the proposal of Yogeshbhai. Yogeshbhai who is residing in United Kingdom showed his intention to come to India for executing the sale deed of his lands in favour of appellant No.3 and asked to pay the money to respondent No.2-Mahendrakumar Javaharbhai Patel. Accordingly, appellant No.3 gave Rs.30,00,000/-each on four days viz. 21.08.2010, 22.08.2010, 26.08.2010 and 28.08.2010 as part payment, the total amounting to Rs.1,20,00,000/-to respondent No.2-Mahendrakumar, who issued receipts for the said payments of amount for and on behalf of accused Yogeshbhai. In 2015, accused Yogeshbhai came to India and arranged meeting with appellant No.3. In the meeting, Yogeshbhai informed appellant No.3 that he has already executed a registered Sale Deed No.1229/2013 dated 16.07.2013 in favour of one M/s Brentwood Industries India Pvt. Ltd. thereby, selling the above referred lands to that company which was agreed to be sold to appellant No.3.
5. Knowing all these facts, appellant No.3 demanded his legal outstanding debt from Yogeshbhai immediately i.e. total of Rs.1,20,00,000/-and Yogeshbhai promised to refund the amount by issuing four cheques each of Rs.30,00,000/-each in favour of appellant No.3. Accordingly, accused Yogeshbhai issued cheques bearing Nos.8108 and 8109 of NRO Account No.08540107512 on 12.10.2015 and cheque Nos.20801 and 20802 of NRE Account No.085401000566 on 30.10.2015. As per appellant No.3, at the time of issuance of cheques, Yogeshbhai gave assurance of the clearance of above cheques.
6. Two cheques bearing Nos.8108 and 8109 dated 12.10.2015 of NRO Account No.08540107512 amounting to Rs.30,00,000/-each were dishonoured on the same day i.e. on 12.10.2015 on the ground of “Payment stopped by the Drawer”. The third cheque was of NRE Account No.085401000566 with cheque bearing No.20801 dated 30.10.2015 amounting to Rs.30,00,000/-and the fourth cheque was also of NRE Account No.085401000566 with cheque bearing No.20802 dated 30.10.2015 amounting to Rs.30,00,000/-. When those two chequ
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