Ramesh Ratilal Tanna vs Gautam Jayantilal Nagarwala
2001 Latest Caselaw 696 Bom

JUDGMENT

R.K. Batta, J.

1. The facts giving rise in the two applications are same except for the amount of the cheque which in Criminal Application No. 561 of 1998 is Rs. 10,000/- and. in case of Criminal Application No. 562 of 1998 is Rs. 14,000/-. Accordingly, the two applications were heard together and it is proposed to dispose of the same by common judgment.

2. The non-applicant had filed a complaint under Section 138 read with Section 141 of the Negotiable Instruments Act and under Section 420 of Indian Penal Code. After examining the complainant, the Magistrate issued process on 10-6-1997. The present applicant filed an application on 9-12-1997 for discharge and the Magistrate vide order dated 10-2-1998 dismissed the said application for discharge. The applicant, namely the accused, has approached this Court for quashing the prosecution as well as issuance of process under Section 138 of the Negotiable Instruments Act.

3. Learned Advocate for the applicant argued before me that on the face of the complaint and the sale deed, it is crystal clear that the entire interest whatever was due had already been paid by the present applicant to the non-applicant at the time of execution of the sale deed as is clear from clause 22 of the sale deed-Therefore, according to the learned Advocate for the applicant, the case of the complainant that the cheque in question was issued towards part payment of interest is falsified by clause 22 of the sale deed itself and as such the cheque in question is not towards any legal liability. The case Of the applicant is that the said cheques were issued towards payment of sales tax, if any payable by the applicant even after the execution of the sale deed. He, therefore, contends that since prima facie the applicant has not been able to make out a case of legal liability as contended by him in the complaint, the proceedings are liable to be quashed. Reliance was placed by learned Advocate for the applicant on Pepsi Foods Lid. and Anr. v. Special Judicial Magistrate and Ors., reported in 1998(1) Mh.LJ. 599; G. Sagar Suri and Anr. v. State of U. P. and Ors., ; and State ofHaryana and Ors. v. Bhajanlal and Ors., reported in".

4. Learned Advocate appearing on behalf of the non-applicant urged before me that under Section 139 of the Negotiable Instruments Act, 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, or any debt or other liability. In this connection, reliance was placed on Pankaj Mehra and Anr. v. State of Maharashtra and Ors., reported in 2000(2) Mh.LJ. 818; Kusum Ingots and Alloys Ltd. v. Pennar Peterson Securities Ltd. and Ors., reported in 2000(2) Mh.LJ. 842; and Maruti Udyog Ltd. v. Narendra and Ors., . It was further urged by the learned Advocate for the non-applicant that the sale deed was executed on 30th August 1996 and the cheques in question have been issued on 1-9-1996 towards part payment of interest due on the entire consideration which had not been regularly and punctually paid and in these circumstances, the non-applicant is entitled to lead evidence under Section 91 and 92 in respect of the said sale deed. According to the learned Advocate for the non-applicant though the presumption under Section 139 is rebuttable yet there is no material on record to rebut the said presumption and that it will be too premature to dismiss the complaint in question without giving opportunity to the non-applicant to lead evidence in this respect, since the applicant is denying his liability in respect of the said cheque though on the ground that the cheques were issued in relation to payment of sales tax, if any, due by the applicant even after the execution of the sale deed. He, therefore, contends that the application be rejected.

5. The sale deed between the parties was executed on 30th August 1996. The execution of the sale deed is not disputed by the non-applicant nor the written clauses in the sale deed. Clause 22 of the sale deed which has an important bearing in the matter read as under :--

"22. That all the expenses on account of the payment of the Stamp-duty. Registration Fees and all other charges including interest, escalation etc. payable in respect of this deed have been borne and paid by the

Vendee/Apartment/ Owner with Tax as applicable will be borne by the Vendee/Apartment/Owner found due even after this deed."

Reading of this clause 22 makes it crystal clear that all expenses on account of payment of stamp duty, Registration Fees and all other charges including interest, escalation etc. payable in respect of this deed have been borne and paid by the Vendee/Apartment/Owner with tax as applicable will be borne by the Vendee/Apartment/Owner found due even after this deed. In the light of this clause 22, it is clear that the entire interest was already paid by the Vendee whatever was due in connection with this sale deed. Therefore, the case as put forward by the complainant in the complaint that the cheques were issued in respect of part payment of interest does not appear to be correct.

6. The Apex Court in Pankaj Mehra and Anr. v. State of Mahanishtra and Ors. (cited supra) has dealt with the presumption under Section 139 of the said Act that when a cheque is received by a holder the Court has to presume that (1) it is a cheque of the nature referred to in Section 138 of the Negotiable instruments Act and (2) such cheque was received for the discharge of a legally enforceably debt or liability. It is a legislation mandate that the Court should proceed with the assumption that such cheque was received for the discharge of a legally enforceable debt or other liability until the drawer proves that it is not so. This means that the presumption under Section 139 of the Negotiable Instruments Act stands rebutted on the face of allegations made in the complaint read with clause 22 of the sale deed, There is no dispute that the presumption under Section 139 is rebuttable and also that the accused need not lead the evidence to rebut the presumption and that the accused can on the basis of the complaint as well evidence led by the complainant himself can rebut the presumption. In my opinion, the presumption in the facts of this case stands rebutted in view of clause 22 of the sale deed vis-a-vis the allegations made in the complaint.

7. In State of Haryana and Ors. v. Bhajanlal and Ors. (cited supra), the Apex Court has laid down certain guidelines for quashing of proceedings and one of the guidelines is whether the uncontroverted allegations made in the F.I.R. or the complaint and the evidence collected in support of the same did not disclose the commission of any offence and make out a case against the accused. In the case under consideration, I have already pointed out, on the face of the complaint read with clause 22 of the sale deed, no case is made out by the complainant and the presumption under Section 139 of the Negotiable Instruments Act stands rebutted. It is now well settled that the power of judicial review under Section 482, Criminal Procedure Code can be used to prevent abuse of the process of any Court or otherwise to secure the ends of justice and this power can be exercised where the allegations made in the complaint, even if they are taken on their face value and accepted in their entirety do not prirna facie constitute any offence or make out a case against the accused. In the light of the above and without even taking into consideration the stand of the present applicant that the cheques were issued towards liability if any arising after execution of the sale deed in connection of the payment of sales tax which otherwise appear to be highly probable. I am of the opinion that the proceedings are required to be quashed. Nonetheless, the later part of clause 22 and clause 29 supports the probable case of the applicant that the said cheques were in relation to sale tax liability if any arising after the execution of the sale deed. In view of clause 22 of the sale deed which categorically states that interest payable in respect of the sale deed has been borne and paid by vendee, there is no scope for the operation of Sections 91 and 92 of Evidence Act.

8. The applications are accordingly allowed. The proceedings as well as the process dated 10-6-1997 issued by the Magistrate are hereby quashed.