RAJESHBHAI MULJIBHAI PATEL AND OTHERS ETC. versus STATE OF GUJARAT AND ANOTHER ETC. on 10 February 2020

[2020] 2 S.C.R. 687

RAJESHBHAI MULJIBHAI PATEL AND OTHERS ETC.

v.

STATE OF GUJARAT AND ANOTHER ETC.

(Criminal Appeal Nos. 251-252 of 2020)

FEBRUARY 10, 2020

[R. BANUMATHI AND A.S.BOPANNA, JJ.]

Negotiable Instruments Act, 1881 – ss.138 and 139 –Appellant no.1 is real brother of respondent-accused in a criminalcase filed u/s.138 by their maternal uncle-appellant no.3 – Boththe brothers are residents of UK – Their father had agriculturallands in India – In order to sell the same, accused called up appellantno.3, who gave Rs.30,00,000/- each on four days to respondentno.2 who issued receipts for and on behalf of accused – Accusedlater informed appellant no.3 that he had already sold the aforesaidlands to a company – Appellant no.3 demanded his legal outstandingdebt of Rs.1,20,00,000/- – Accused issued 4 cheques – Dishonoured– Claim against 2 cheques is barred by limitation – Criminal case u/s.138 concerns only 2 cheques – Appellant no.3 filed Summary Suitfor recovery of Rs.1,20,00,000/- based on four receipts – FIRregistered against appellants alleging forgery and fabrication ofthe four receipts – Appellant nos.1-3 sought its quashing – Accusedalso sought quashing of the criminal case filed against him u/s.138– High Court declined to quash the FIR – Criminal case u/s.138was quashed – Held: Four receipts filed in the suit were sent tohandwriting expert who opined that signatures therein did not tallywith respondent no.2’s sample signatures – It was only thereafterthat FIR was registered against the appellants – Based on soleopinion of handwriting expert, the FIR ought not to have beenregistered – When the issue as to the genuineness of receipts ispending consideration in the civil suit, continuation of FIR wouldprejudice the interest of parties and their stand in the civil suit –Further, the accused admitted issuance of cheques – When oncethe issuance of cheque is admitted/established, the presumptionwould arise u/s.139 in favour of the holder of cheque-appellantno.3 – Nature of presumptions u/s.139 & s.118(a), 1872 Act arerebuttable – High Court did not keep in view that until the accused

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Adischarges his burden to rebut the statutory presumption, thepresumption u/s.139 will continue to remain – Impugned order setaside – FIR against the appellants is quashed – Criminal case filedby appellant no.3 u/s.138 is restored – Same be disposed of inaccordance with law – Summary Suit be proceeded in accordancewith law, uninfluenced by views expressed by High Court in theBimpugned order – Code of Civil Procedure, 1908 – Or.37– PenalCode, 1860 – ss.406, 420, 465, 467, 468, 471 & 114 – Code ofCriminal Procedure, 1973 – s.482 – Evidence Act, 1872 – ss.45, 73and 118(a).

Allowing the appeals, the Court

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Conclusion

Allowing the appeals, the Court

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HELD: 1.1 The handwriting expert opined that signaturesin all the four receipts did not tally with the sample signatureswhich were of respondent No. 2. It was only thereafter, complaintwas filed by him, based on which, FIR No.I-194/2016 wasregistered on 28.12.2016 against the appellants for the offencesDpunishable under Sections 406, 420, 465, 467, 468, 471 and 114IPC. As rightly contended by the counsel for the appellants, inthe Summary Suit No.105/2015, issue No. 5 has been framed bythe Court “whether the defendant proved that the plaintiff hasfabricated the forged signature illegally and created forgedEreceipts”. When the issue as to the genuineness of the receiptsis pending consideration in the civil suit, the FIR ought not tohave been allowed to continue as it would prejudice the interestof the parties and the stand taken by them in the civil suit. Interms of Section 45 of the Indian Evidence Act, the opinion ofhandwriting expert is a relevant piece of evidence; but it is not aFconclusive evidence. It is always open to the plaintiff-appellantNo.3 to adduce appropriate evidence to disprove the opinion ofthe handwriting expert. That apart, Section 73 of the IndianEvidence Act empowers the Court to compare the admitted anddisputed writings for the purpose of forming its own opinion.GBased on the sole opinion of the handwriting expert, the FIRought not to have been registered. Continuation of FIR No.I-194/2016, would amount to abuse of the process of Court.[Paras 18, 19][696-F-H; 697-A-D]

1.2 The High Court erred in quashing the criminal case inHC.C.No.367/2016 filed by appellant No.3 under Section 138 of N.I. Act. Accused admitted the issuance of cheques. When oncethe issuance of cheque is admitted/established, the presumptionwould arise under Section 139 of the N.I. Act in favour of theholder of cheque that is the complainant-appellant No.3. Thenature of presumptions under Section139 of the N.I. Act andSection 118(a) of the Indian Evidence Act are rebuttable. Theburden lies upon the accused to rebut the presumption byadducing evidence. The High Court did not keep in view thatuntil the accused discharges his burden, the presumption underSection 139 of N.I. Act will continue to remain. It is for accusedto adduce evidence to rebut the statutory presumption. Whendisputed questions of facts are involved which need to beadjudicated after the parties adduce evidence, the complaintunder Section 138 of the N.I. Act ought not to have been quashedby the High Court by taking recourse to Section 482 Cr.P.C.Though, the Court has the power to quash the criminal complaintfiled under Section 138 of the N.I. Act on the legal issues likelimitation, etc. Criminal complaint filed under Section 138 of theN.I. Act against accused ought not have been quashed merely onthe ground that there are inter se dispute between appellant No.3and respondent No.2. Without keeping in view the statutorypresumption raised under Section 139 of the N.I. Act, the HighCourt, committed a serious error in quashing the criminalcomplaint in C.C.No.367/2016 filed under Section 138 of N.I. Act.The impugned order is set aside. [Paras 20, 21][697-D-H; 698-A-B]

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 251-252 of 2020.

From the Judgment and Order dated 14.12.2018 of the High Courtof Gujarat at Ahmedabad in R/Criminal Misc. Application No. 2735/2017 and in R/Criminal Misc. Application No. 24588/2017.

D. N. Parikh, Ms. J. S. Mekwan and Rameshwar Prasad Goyal,Advs. for the Appellants.

Ms. Aishwarya Bhati, Sr. Adv., Chitrangda Rastravara, Ms. KirtiKhangarot, Jaideep Singh, Nitin P., Ms. Celeste Agarwal, Ms. OorjasviGoswami, P. Thaknani, Gp. Capt. Karan Singh Bhati, Aniruddha P. MayeeMs. Deepawati Priyanka, Advs. for the Respondents.

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AThe Judgment of the Court was delivered by

R. BANUMATHI, J.

1. Leave granted.

2. These appeals arise out of the impugned judgment datedB14.12.2018 passed by the High Court of Gujarat at Ahmedabad dismissingCriminal Misc. Application No.2735/2017 thereby declining to quash theFIR No.I-194/2016. By the same order, the High Court has allowedCriminal Misc. Application No.24588 of 2017 and quashed the criminalcase in C.C.No.367/2016 filed by appellant No.3-HashmukhbhaiRavjibhai Patel against accused Yogeshbhai Muljibhai Patel under SectionC138 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 ofYogeshbhai Muljibhai Patel who is the accused in C.C.No.367/2016 filedDunder Section 138 of N.I. Act by appellant No.3-Hashmukhbhai RavjibhaiPatel. Both appellant No.1-Rajeshbhai and his brother Yogeshbhai arestated to be residents of United Kingdom. In this appeal, appellant No.1-Rajeshbhai is represented through his Power of Attorney holder-appellantNo.2-Vipulkumar Hasmukhbhai Patel. Respondent-Yogeshbhai isrepresented through his Power of Attorney holder-another respondent-EMahendrakumar Javaharbhai Patel.

4. On 08.12.2015, appellant No.3-Hasmukhbhai Ravjibhai Patelfiled a criminal case being C.C.No.367/2016 against accused Yogeshbhaiunder Section 138 of N.I. Act. The father of appellant No.1-Rajeshbhaiand Yogeshbhai had agricultural lands bearing Block/Survey Nos.534,F536/1/A, 536/1/B, 538, 539, 540, 541/1, 542 and 543 situated at VillageFofaliya, Ta. Dabhoi, District Vadodara. In 2010, in order to sell hisfather’s land, Yogeshbhai called up appellant No.3 who is also thematernal uncle of Yogeshbhai and Rajeshbhai. Since appellant No.3 wasalso planning of buying some agricultural land from the surplus fundswhich he has received from the sale of his agricultural land, he acceptedGthe proposal of Yogeshbhai. Yogeshbhai who is residing in UnitedKingdom showed his intention to come to India for executing the saledeed of his lands in favour of appellant No.3 and asked to pay the moneyto respondent No.2-Mahendrakumar Javaharbhai Patel. Accordingly,appellant No.3 gave Rs.30,00,000/- each on four days viz. 21.08.2010,H22.08.2010, 26.08.2010 and 28.08.2010 as part payment, the total amounting to Rs.1,20,00,000/- to respondent No.2-Mahendrakumar, whoissued receipts for the said payments of amount for and on behalf ofaccused Yogeshbhai. In 2015, accused Yogeshbhai came to India andarranged meeting with appellant No.3. In the meeting, Yogeshbhaiinformed appellant No.3 that he has already executed a registered SaleDeed No.1229/2013 dated 16.07.2013 in favour of one M/s BrentwoodIndustries India Pvt. Ltd. thereby, selling the above referred lands tothat company which was agreed to be sold to appellant No.3.

5. Knowing all these facts, appellant No.3 demanded his legaloutstanding debt from Yogeshbhai immediately i.e. total ofRs.1,20,00,000/- and Yogeshbhai promised to refund the amount by issuingfour cheques each of Rs.30,00,000/- each in favour of appellant No. 3.Accordingly, accused Yogeshbhai issued cheques bearing Nos.8108 and8109 of NRO Account No. 08540107512 on 12.10.2015 and chequeNos.20801 and 20802 of NRE Account No.085401000566 on 30.10.2015.As per appellant No. 3, at the time of issuance of cheques, Yogeshbhaigave assurance of the clearance of above cheques.

6. Two cheques bearing Nos.8108 and 8109 dated 12.10.2015 ofNRO Account No.08540107512 amounting to Rs.30,00,000/- each weredishonoured on the same day i.e. on 12.10.2015 on the ground of “Paymentstopped by the Drawer”. The third cheque was of NRE AccountNo.085401000566 with cheque bearing No.20801 dated 30.10.2015amounting to Rs.30,00,000/- and the fourth cheque was also of NREAccount No.085401000566 with cheque bearing No.20802 dated30.10.2015 amounting to Rs.30,00,000/-. When those two cheques drawnon NRE Account No.085401000566 were presented before the Bankon the same day i.e. on 30.10.2015, those cheques were also returnedon the same day with the endorsement “Payment stopped by theDrawer”. Thereafter, appellant No.3 sent a legal notice to Yogeshbhaion 17.11.2015 demanding payment of money which notice was deliveredon 23.11.2015.

7. Insofar as dishonor of cheques bearing Nos.8108 and 8109dated 12.10.2015 of NRO Account No.08540107512, they were returnedunpaid on 12.10.2015. The Complainant issued notice on 17.11.2015 andtherefore, claim qua the two cheque Nos.8108 and 8109 are barred bylimitation under the provisions of Negotiable Instruments Act. Thecomplaint therefore, pertains only for cheque Nos.20801 and 20802 ofNRE Account No.085401000566 which were returned unpaid on AB

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A30.10.2015. Complaint under Section 138 of N.I. Act against Yogeshbhaiwas taken on file on 05.02.2016 in C.C.No.367/2016. On 06.09.2016,the Court of 5[th] Additional Civil Judge & JMFC, Bharuch issued a bailablewarrant for production of accused Yogeshbhai.

8. Appellant No.3-Hasmukhbhai has filed a Special Summary SuitBNo.105/2015 before the Additional Chief Judicial Magistrate, Vadodarafor recovery of Rs.1,20,00,000/- under Order 37 of CPC. Summary SuitNo.105/2015 filed by appellant No.3 was based on the four receiptsissued by respondent No.2-Mahendrakumar. The Court in that case hasissued summons for appearance against Yogeshbhai and Mahendrakumarwhich has been served on 01.11.2015. According to the respondents,Cthey came to know about those four receipts only after they have beenserved with summons in the said suit. Alleging that the appellants haveforged and fabricated the four receipts, respondent No.2-Mahendrakumarhas filed the complaint for cheating and forgery against the appellants.Based on the said complaint, FIR No.I-194/2016 was registered againstDthe appellants under Sections 406, 420, 465, 467, 468, 471 and 114 IPC.Respondent No.2-Mahendrakumar has alleged that the appellants joinedtogether and prepared fabricated receipts of Rs.1,20,00,000/- bearingforged signature of respondent No.2 and produced these forged receiptsas true.

E9. In the FIR, it was averred that Yogeshbhai, who is residing inUnited Kingdom had executed a power of attorney dated 14.03.2013 infavour of Mahendrakumar for administration of his lands. On the basisof this power of attorney, Mahendrakumar executed an Agreement toSale in favour of one Jigneshbhai Dhanesh Chandra Shah on 16.04.2013.Thereafter, Yogeshbhai came from London and executed a registeredFSale Deed No.1229/2013 dated 16.07.2013 in favour of M/s BrentwoodIndustries India Pvt. Ltd. for Rs.6,16,44,000/-. In the sale deed, theagreement to sale holder has signed as confirming party. In considerationof the sale deed, the land owner was to receive Rs.6,16,44,000/- and theconfirming party-Jigneshbhai was to receive Rs.1,13,94,000/-. YogeshbhaiGis the elder brother of appellant No.1-Rajeshbhai. Appellant No.1 hadfiled a Special Civil Suit No.284/2013 before the Court of Principal CivilJudge, Bharuch claiming his share in the said land sold by Yogeshbhai.In the said suit, Yogeshbhai, his mother Kanchanben, respondent No.2-Mahendrakumar and Jigneshbhai were arraigned as defendants. Thesaid suit was compromised between appellant No.1 and Yogeshbhai inH

London and Yogeshbhai was to pay Rs.90,00,000/- to Rajeshbhai-appellant No.1. Appellant No.1 agreed to issue NOC and promised thathis power of attorney holder-appellant No.2-Vipulkumar HasmukhbhaiPatel will issue NOC. Accordingly, Yogeshbhai had come from Londonand his power of attorney holder-appellant No.2-Vipulkumar had executedNOC letter in presence of Notary H.J. Zala on 23.09.2015. There wasvarious correspondence between the parties and the companyM/s Brentwood Industries India Pvt. Ltd. regarding payment of saidRs. 90,00,000/-.

10. Appellants No.1 to 3 filed Criminal Misc. Application No.2735/2017 before the High Court under Section 482 Cr.P.C. for quashing ofFIR No.I-194/2016. Yogeshbhai who is the accused in the criminal casebeing C.C.No.367/2016 also filed Criminal Misc. Application No.24588/2017 for quashing of cheque case filed against him under Section 138 ofN.I. Act. Yogeshbhai claimed that he has given the cheques to appellantNo.3-Hasmukhbhai who approached him requesting for help to purchaseland. Yogeshbhai alleged that the appellants have forged the receiptsissued by respondent No.2-Mahendrakumar. In this regard, Yogeshbhaiplaced reliance upon the report of the hand-writing expert, Directorateof Forensic Science dated 15.12.2016 as per which, the disputedsignatures of Mahendrakumar Javaharbhai on the receipts were notwritten by him i.e. respondent No.2-Mahendrakumar Javaharbhai.

11. Vide the impugned judgment dated 14.12.2018, the High Courtdismissed Criminal Misc. Application No.2735/2017 and declined to quashthe FIR No.I-194/2016. The High Court held that on the basis of fourreceipts allegedly issued by Mahendrakumar, the third appellant-Hasmukhbhai has filed the Summary Suit No.105/2015 for recovery ofRs.1,20,00,000/-. The High Court referred to the hand-writing expert’sopinion who has opined that the signatures found in the receipts do nottally with the signature of respondent No.2-Mahendrakumar. The HighCourt held that looking into the allegations and the facts, prima faciecase of forgery and cheating are made out against the appellants andaccordingly, declined to quash the FIR No.I-194/2016 and dismissedCriminal Misc. Application No.2735/2017.

12. On the basis of order passed in Criminal Misc. ApplicationNo.2735/2017, the Criminal Misc. Application No.24588/2017 filed byYogeshbhai was allowed and the criminal case in C.C.No.367/2016 filedby appellant No.3-Hasmukhbhai under Section 138 of N.I. Act was A

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Aquashed. The High Court held that based on the alleged forged receipts,criminal case has been filed under Section 138 of N.I. Act and the chequecase cannot be proceeded with and accordingly, quashed the criminalcase in C.C.No.367/2016 filed under Section 138 of N.I. Act. Beingaggrieved, the appellants have filed these appeals.

B13. Mr. D.N. Parikh, learned counsel for the appellants hassubmitted that the High Court has failed to appreciate that the FIR lodgedby respondent No.2-Mahendrakumar is false and frivolous as the samesubject matter is pending consideration in Summary Suit No.105/2015.It was submitted that at least two cases viz. Special Summary Suit No.105/2015 and criminal case in C.C.No.367/2016 filed under Section 138 ofCN.I. Act are pending before the competent court and while so, the criminalcase could not have been registered on the four receipts which are thesubject matter of the pending litigations between the parties. It was furthersubmitted that in the Summary Suit No.105/2015, issue No.5 framed bythe Court is “whether the defendant proved that the plaintiff hasDfabricated the forged signature illegally and created forged receipts”and the FSL report-report of the handwriting expert is filed in the saidsuit and the Civil Court is yet to determine the issue as to the genuinenessof the receipts. Learned counsel submitted that the High Court has failedto appreciate that the opinion of the handwriting expert is relevantevidence, but it is not a conclusive evidence and Section 73 of the IndianEEvidence Act empowers the Court to compare the admitted and disputedwritings for the purpose of forming Court’s opinion. It was contendedthat when the genuineness of four receipts is an issue in the civil suit andthe dispute is of civil nature, the continuation of the criminal case is anabuse of process of the Court and the FIR No.I-194/2016 is liable to beFquashed. It was also contended that the High Court erred in quashingthe cheque case filed under Section 138 of N.I. Act and the High Courtdid not keep in view that issuance of cheques by Yogeshbhai from hisNRE Account has been admitted.

14. Refuting the above contentions, Ms. Aishwarya Bhati, learnedGSenior counsel for the respondents has submitted that appellant No.3-Hashmukhbhai is the maternal uncle of Yogeshbhai and relying upon thewords of appellant No.3 and his son-appellant No.2-Vipulkumar,Yogeshbhai issued two cheques bearing Nos.8108 and 8109 for Rs.30,00,000/- each from his NRO Account and after issuing the cheques,Yogeshbhai realised that there was no funds in the said account and heH

asked appellant No.3 to return the above cheques and collect new chequesof another account. It was submitted that thereafter Yogeshbhai issuednew cheques of NRE Account bearing Nos.20801 and 20802 ofRs.30,00,000/- each and at that time, appellant No.3 had told that he hadnot brought the old cheques with him and will return the old cheques in aday or two but never returned the cheques. Learned Senior counselsubmitted that Yogeshbhai got suspicious and on making enquiry, he foundthat appellants No. 2 and 3 were not intending to purchase any lands andthus, he has instructed the Bank to stop payment for all the four cheques.Learned Senior counsel further submitted that appellants made fourforged receipts of Rs.30,00,000/- each by forging the signatures ofrespondent No.2-Mahendrakumar and the handwriting expert opinedthat four receipts relied upon by appellant No.3-Hasmukhbhai have notbeen signed by respondent No.2-Mahendrakumar and on the basis ofFSL report, FIR No.I-194/2016 has been registered under Sections 406,420, 465, 467, 468, 471 and 114 IPC. It was submitted that since there isa prima facie case of forgery and cheating made out against the appellants,the High Court rightly declined to quash the FIR and the impugned orderwarrants no interference.

15. We have carefully considered the submissions and perusedthe impugned order and other materials on record.

16. The issue relates to the alleged forgery of four receipts dated21.08.2010, 22.08.2010, 26.08.2010 and 28.08.2010 each for a sum ofRs.30,00,000/- totalling to Rs.1,20,00,000/- issued by respondent No.2-Mahendrakumar. For the recovery of the amount of Rs.1,20,00,000/-,appellant No.3-Hasmukhbhai filed Special Summary Suit No.105/2015in October, 2015. After receiving summons in Summary Suit No.105/2015, respondent No.2-Mahendrakumar entered appearance and filedapplication seeking leave to defend and the said application was allowedon 19.04.2016. On application filed by appellant No.3-Hasmukhbhai inthe Summary Suit No.105/2015, four receipts were sent to ForensicScience Laboratory for obtaining the opinion of handwriting expert. Thehandwriting expert’s report was received in the Court on 15.12.2016 tothe effect that all the four receipts were not signed by respondent No.2-Mahendrakumar. It was thereafter on the complaint filed by respondentNo.2, FIR No.I-194/2016 dated 28.12.2016 was registered against theappellants for the offences punishable under Sections 406, 420, 465,467, 468, 471 and 114 IPC.

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A17. In C.C.No.367/2016, case of appellant No.3-Hasmukhbhai isthat Yogeshbhai issued four cheques each for a sum of Rs.30,00,000/-,details of which are as under:- B

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On presentation, the above cheques were dishonoured on theground “Payment stopped by the Drawer”. After issuing the legal notice,Dappellant No.3-Hasmukhbhai filed criminal case in C.C.No.367/2016 on08.12.2015 pertaining to two cheques bearing Nos.20801 and 20802. Itwas only thereafter, respondent No.2-Mahendrakumar had filed thecriminal complaint dated 20.03.2016 and also filed another criminalcomplaint dated 14.04.2016 against appellant No.1-Rajeshbhai andappellant No.2-Vipulkumar. Since the police had not registered the FIR,Erespondent No.2 filed SCRA No.5945/2016 and SCRA No.6349/2016before the High Court for seeking directions for lodging FIR. The HighCourt vide orders dated 04.10.2016 and 06.09.2016 disposed of thosepetitions directing the police to investigate into the matter.

18. Be that as it may, in the Summary Suit No.105/2015, leave toFdefend was granted to respondent No.2-Mahendrakumar on 19.04.2016.On the application filed by appellant No.3 in the said Summary SuitNo.105/2015, four receipts filed in the suit were sent to the handwritingexpert. The handwriting expert has opined that signatures in all the fourreceipts did not tally with the sample signatures which were of respondentGNo.2-Mahendrakumar. It was only thereafter, complaint was filed byMahendrakumar, based on which, FIR No.I-194/2016 was registeredon 28.12.2016 against the appellants for the offences punishable underSections 406, 420, 465, 467, 468, 471 and 114 IPC. As rightly contendedby the learned counsel for the appellants, in the Summary Suit No.105/2015, issue No.5 has been framed by the Court “whether the defendantH

proved that the plaintiff has fabricated the forged signature illegally andcreated forged receipts”. When the issue as to the genuineness of thereceipts is pending consideration in the civil suit, in our view, the FIRought not to have been allowed to continue as it would prejudice theinterest of the parties and the stand taken by them in the civil suit.

19. It is also to be pointed out that in terms of Section 45 of theIndian Evidence Act, the opinion of handwriting expert is a relevantpiece of evidence; but it is not a conclusive evidence. It is always opento the plaintiff-appellant No.3 to adduce appropriate evidence to disprovethe opinion of the handwriting expert. That apart, Section 73 of the IndianEvidence Act empowers the Court to compare the admitted and disputedwritings for the purpose of forming its own opinion. Based on the soleopinion of the handwriting expert, the FIR ought not to have beenregistered. Continuation of FIR No.I-194/2016, in our view, would amountto abuse of the process of Court and the petition filed by the appellantsunder Section 482 Crl.P.C. in Criminal Misc. Application No.2735/2017to quash the FIR I-194/2016 is to be allowed.

20. The High Court, in our view, erred in quashing the criminalcase in C.C.No.367/2016 filed by appellant No.3-Hasmukhbhai underSection 138 of N.I. Act. As pointed out earlier, Yogeshbhai has admittedthe issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the N.I.Act in favour of the holder of cheque that is the complainant-appellantNo.3. The nature of presumptions under Section139 of the N.I. Act andSection 118(a) of the Indian Evidence Act are rebuttable. Yogeshbhaihas of course, raised the defence that there is no illegally enforceabledebt and he issued the cheques to help appellant No.3-Hasmukhbhai forpurchase of lands. The burden lies upon the accused to rebut thepresumption by adducing evidence. The High Court did not keep in viewthat until the accused discharges his burden, the presumption underSection 139 of N.I. Act will continue to remain. It is for Yogeshbhai toadduce evidence to rebut the statutory presumption. When disputedquestions of facts are involved which need to be adjudicated after theparties adduce evidence, the complaint under Section 138 of the N.I.Act ought not to have been quashed by the High Court by taking recourseto Section 482 Cr.P.C. Though, the Court has the power to quash thecriminal complaint filed under Section 138 of the N.I. Act on the legalissues like limitation, etc. Criminal complaint filed under Section 138 of A

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Athe N.I. Act against Yogeshbhai ought not have been quashed merely onthe ground that there are inter se dispute between appellant No.3 andrespondent No.2. Without keeping in view the statutory presumptionraised under Section 139 of the N.I. Act, the High Court, in our view,committed a serious error in quashing the criminal complaint inC.C.No.367/2016 filed under Section 138 of N.I. Act.

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21. In the result, the impugned order is set aside and these appealsare allowed. Criminal Misc. Application No.2735/2017 filed by theappellants is allowed and the FIR No.I-194/2016 is quashed. CriminalMisc. Application No.24588/2017 filed by Yogeshbhai Muljibhai Patelstands dismissed. Case filed by appellant No.3-Hasmukhbhai RavjibhaiCPatel under Section 138 of N.I. Act - C.C.No.367/2016 stands restored.The 5[th] Additional Civil Judge & JMFC, Bharuch is directed to proceedwith the case in C.C.No.367/2016 filed under Section 138 of N.I. Actand afford sufficient opportunity to both the parties and dispose the samein accordance with law. The Summary Suit No.105/2015 shall be Dproceeded in accordance with law without being influenced by any ofthe views expressed by the High Court in the impugned order.

Divya Pandey

Appeals allowed.

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