Supreme Court bench comprising of Justice R. Banumathi and Justice A.S. Bopanna in Rajeshbhai Muljibhai Patel and Others Etc. v. State of Gujarat held that, when disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the N.I. Act on the legal issues like limitation, etc.
Facts of the case are that, in 2010, in order to sell his father’s land, Respondent called up Appellant. The appellant accepted the proposal of the respondent. Respondent who was residing in United Kingdom showed his intention to come to India for executing the sale deed of his lands in favour of appellant and asked to pay the money to respondent No. 2. Accordingly, appellant gave Rs.30,00,000/- each on four days 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-respondent. In 2015, accused Respondent came to India and arranged meeting with appellant. In the meeting, Respondent informed appellant that he has already executed a registered Sale Deed of another party thereby, selling the above referred lands to that company which was agreed to be sold to appellant. Knowing all these facts, appellant demanded his legal outstanding debt from Respondent immediately i.e. total of Rs.1,20,00,000/- and Respondent promised to refund the amount by issuing four cheques each of Rs.30,00,000/- each in favour of appellant.. Summary Suit filed by appellant was based on the four receipts issued by respondent No.2-Mahendrakumar. Alleging that the appellants have forged and fabricated the four receipts, respondent No.2-Mahendrakumar filed the complaint for cheating and forgery against the appellants. Based on the said complaint, FIR was registered against the appellants under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. Appellants filed Criminal Misc. Application before the High Court under Section 482 Cr.P.C. for quashing of FIR.
The High Court held that on the basis of four receipts allegedly issued by Mahendrakumar, the appellant-Hasmukhbhai has filed the Summary Suit for recovery of Rs.1,20,00,000/-. The High Court referred to the hand-writing expert’s opinion who has opined that the signatures found in the receipts do not tally with the signature of respondent No.2-Mahendrakumar. The High Court held that looking into the allegations and the facts, prima facie case of forgery and cheating are made out against the appellants and accordingly, declined to quash the FIR and dismissed Criminal Misc. Application.
Respondent also filed Criminal Misc. Application for quashing of cheque case filed against him under Section 138 of N.I. Act.The Criminal Misc. Application filed by Respondent was allowed and the criminal case filed by appellant-Hasmukhbhai under Section 138 of N.I. Act was quashed by the High Court. 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 cheque case cannot be proceeded with and accordingly, quashed the criminal case in filed under Section 138 of N.I. Act.
After carefully considering the submissions Supreme Court held that, Section 45 of the Indian Evidence Act, the opinion of handwriting expert is a relevant piece of evidence; but it is not a conclusive evidence.
Bench further added that, “It is always open to the plaintiff-appellant to adduce appropriate evidence to disprove the opinion of the handwriting expert. That apart, Section 73 of the Indian Evidence Act empowers the Court to compare the admitted and disputed writings for the purpose of forming its own opinion. Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered.
Apex Court Bench added that, “Continuation of FIR filed by respondent, in our view, would amount to abuse of the process of Court and the petition filed by the appellants under Section 482 Crl.P.C. in Criminal Misc. Application to quash the FIR is to be allowed”.
Supreme Court further held that, “High Court erred in quashing the criminal case in filed by appellant -Hasmukhbhai under Section 138 of N.I. Act. As pointed out earlier, Respondent had admitted the 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-appellant. The nature of presumptions under Section 139 of the N.I. Act and Section 118(a) of the Indian Evidence Act are rebuttable. The burden lies upon the accused to rebut the presumption by adducing evidence.
Bench added that, “High Court did not keep in view that until the accused discharges his burden, the presumption under Section 139 of N.I. Act will continue to remain. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the N.I. Act on the legal issues like limitation, etc. Criminal complaint filed under Section 138 of the N.I. Act against Respondent ought not have been quashed merely on the ground that there are inter se dispute between appellant and respondent No.2.
SC Bench concluded that, “Without keeping in view the statutory presumption raised under Section 139 of the N.I. Act, the High Court, in our view, committed a serious error in quashing the criminal complaint filed under Section 138 of N.I. Act”.
Supreme Court proceeded to quash the FIR filed by the Respondents, restored the case filed by Appellant- Hasmukhbhai Ravjibhai Patel under Section 138 of N.I. Act.
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