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<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> <html xmlns="http://www.w3.org/1999/xhtml"> <head> </head> <body> <div style="font-family:Verdana, Geneva, sans-serif; font-size:12px; text-align:justify"> <table width="800" border="0" style="border:1px solid #ccc;padding:5px;" align="center" cellpadding="6" cellspacing="0"> <tr> <td align="left" valign="top"> Supreme Court Complaint under Section 138 NI Act cannot be quashed when disputed question of facts are involved MANU/SC/0155/2020 - (10 Feb 2020) </td> </tr> <tr> <td align="left" valign="top">Rajeshbhai Muljibhai Patel and Ors. Vs. State of Gujarat and Ors.</td> </tr> <tr> <td align="left" valign="top" style="background-color:#FDEDCE">Present appeals arise out of the impugned judgment passed by the High Court dismissing Criminal Miscellaneous Application thereby declining to quash the FIR. By the same order, the High Court has allowed Criminal Miscellaneous Application and quashed the criminal case filed by Appellant No. 3-Hashmukhbhai Ravjibhai Patel against Accused Yogeshbhai Muljibhai Patel under Section 138 of The Negotiable Instruments Act, 1881 (N.I. Act). 
The issue relates to the alleged forgery of four receipts. Appellants has submitted that, the High Court has failed to appreciate that the FIR lodged by Respondent No. 2-Mahendrakumar is false and frivolous as the same subject matter is pending consideration in Summary Suit. While so, the criminal case could not have been registered on the four receipts which are the subject matter of the pending litigations between the parties. 
On the contrary, the Respondents has submitted that, Appellants made four forged receipts of Rs. 30,00,000 each by forging the signatures of Respondent No. 2 and the handwriting expert opined that four receipts relied upon by Appellant No. 3 have not been signed by Respondent No. 2- and on the basis of FSL report, FIR has been registered under Sections 406, 420, 465, 467, 468, 471 and 114 of Indian Penal Code, 1860 (IPC). It was submitted that since there is a prima facie case of forgery and cheating made out against the Appellants, the High Court rightly declined to quash the FIR and the impugned order warrants no interference. 
In terms of Section 45 of the Indian Evidence Act, 1872 the opinion of handwriting expert is a relevant piece of evidence; but it is not a conclusive evidence. It is always open to the Plaintiff-Appellant No. 3 to adduce appropriate evidence to disprove the opinion of the handwriting expert. 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. Continuation of FIR would amount to abuse of the process of Court and the petition filed by the Appellants under Section 482 of CrPC in Criminal miscellaneous Application to quash the FIR I-194/2016 is to be allowed. 
The High Court erred in quashing the criminal case filed by Appellant No. 3 under Section 138 of N.I. Act. Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted, the presumption would arise under Section 139 of the N.I. Act in favour of the holder of cheque that is the complainant-Appellant No. 3. The nature of presumptions under Section 139 of the N.I. Act and Section 118(a) of the Indian Evidence Act are rebuttable. Yogeshbhai has of course, raised the defence that, there is no illegally enforceable debt and he issued the cheques to help Appellant No. 3-Hasmukhbhai for purchase of lands. The burden lies upon the Accused to rebut the presumption by adducing evidence. The 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. It is for Yogeshbhai to adduce evidence to rebut the statutory presumption. 
When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the NI Act ought not to have been quashed by the High Court by taking recourse to Section 482 of CrPC. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the NI Act on the legal issues like limitation, etc. Criminal complaint filed under Section 138 of the NI Act against Yogeshbhai ought not have been quashed merely on the ground that, there are inter se dispute between Appellant No. 3 and Respondent No. 2. 
 Without keeping in view the statutory presumption raised under Section 139 of the N.I. Act, the High Court, committed a serious error in quashing the criminal complaint filed under Section 138 of NI Act. 
Criminal Miscellaneous Application filed by the Appellants is allowed and the FIR is quashed. Criminal Misc. Application filed by Yogeshbhai Muljibhai Patel stands dismissed. Case filed by Appellant No. 3 under Section 138 of N.I. Act stands restored. In the result, the impugned order is set aside and these appeals are allowed.</td> </tr> <tr> <td align="left" valign="top" ></td> </tr> <tr> <td align="left" valign="top" >Tags : FIR, Quashing of, Legality</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr>  <td align="left" valign="top">Source : newsroom.manupatra.com</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr> <td align="left" valign="top">Regards</td> </tr> <tr> <td align="left" valign="top">Team Manupatra</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> </table> </div> </body> </html>