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The burden of adducing the evidence lies on the person who admits the issuance of cheque in order to

Rajeshbhai Mulhibhai patel and others etc.. v State of Gujarat and Another etc., Criminal Appeal No. 251-252 of 2020 arising out of SLP (crl) no. 142-143 of 2019 – February 10, 2020.

The Bench comprising of the Justice. R. Banumathi and A.S. Bopanna allowed the appeal.

The court held that ” Once the issuance of cheque is admitted or established, the presumption would arise under section 139 of NI Act, in favour of the holder of the cheque. The nature of presumption under section 139 of NI Act and section 118(a) of IEA are rebuttable. Here the accused raised the defence that there is no illegally enforceable debt and he issued the cheques to help the appellant no.3 for the purchase of land. Thus the burden lies upon the accused to rebut the presumption by adducing the evidence”.

The facts of the case is that Yogeshbhai is planning to sell his father’s land to the appellant no.3- Hasmukhbhai Ravjibhai patel and amount of Rs. 30,00,000/- as the part payment, the total amounting to Rs.1,20,00,000/-.After that the appellant no.3 came to know that the said land had been already registered in favour of M/s Brentwood Industries India Pvt. Ltd. On demanding the legal outstanding debt, Yogeshbhai issued four cheques each amounting to Rs. 30,00,000/- and were said to be dishonoured. Complaint was made under section 138 of NI Act against Yogeshbhai in CC.No. 367/2016 and the court issued a bailable warrant. Also the appellant no.1- Rajeshbhai Mulhibhai patel who is the brother of Yogeshbhai is said to be compromised with the settlement of Rs. 90,00,000 for issuing NOC and was signed before a notary advocate.

Yogeshbhai being the resident of United Kingdom appointed the respondent no.2-Mahendrakumar as the power of attorney who filed the complaint against the appellants alleging that they have forged and fabricated the four receipts for which FIR. No.1-194 of 2016 has been registered.  Appellants no.1-3 filed a Criminal Misc Application No.2734 of 2017 before the High court under 482 CRPC for quashing of FIR.No. 1-194 of 2016.

The High court dismissed the application and declined to quash the FIR based on the opinion of Hand writing experts who gave an opinion that the signature of the four receipts does not match with the respondent no.2 and held that, criminal case been filed under section 138 of NI act cannot be proceeded and quashed the criminal case in C.C.No.367/2016 filed under section 138 of NI act.

The court viewed the issue framed by the Additional CJM court that, Whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts ?

The contention on the side of the appellants are that the opinion of the handwriting expert is relevant evidence but it is not a conclusive evidence and the FIR filed by the respondent is false and frivolous as the same subject matter was pending before the competent court.

The court on taking the contention of the appellant held that the issue regarding the genuineness of the receipts is pending before the civil court, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties. And 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.

Thus, the Court held that the petition filed by the appellants under section 482 CRPC is allowed  to quash the FIR and directed the competent court to proceed with the case filed under section 138  N.I. Act.

Thus the appeal is allowed.

– Prithisha S



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