MAHENDRA M.MALVIYA Vs. BHAGWAN SINGH T.RAJPUT

JUDGEMENT

(1.) Mahendra M.Malviya (P-1), Nisha S.Rajput (P-2) and Surndra Singh Rajput (P-3) have preferred the present petition under Section 482 Cr.P.C. for quashing of summoning order dated 01.09.2001 and subsequent proceedings in Criminal Complaint No.1551/1/10 titled as "Bhagwan Singh T.Rajput v. Mahendra M.Malviya & Ors., filed under Section 138 Negotiable Instruments Act. I have heard the learned counsel for the parties and have examined the file. In a Complaint Case under Section 138 Negotiable Instruments Act filed by respondent No.2 before Metropolitan Magistrate, Ahmadabad vide order dated 01.09.2001, the petitioners were summoned to face trial. When they did not put appearance despite issuance of process several times, the complainant moved Supreme Court for transfer of proceedings in T.P.(Crl.) No.355/2007 and on 04.05.2009, after hearing the parties, the case was transferred to Patiala House Courts, Delhi. The process was issued time and again to procure petitioners' presence but they did not respond and costs Rs. 30,000/- were imposed for their non-appearance while adjourning the matter for framing of notice under Section 251 Cr.P.C. and furnishing of bail bonds. The petitioners opted to challenge summoning order and the proceedings under Section 482 Cr.P.C. in July, 2011 after a gap of ten years.

(2.) Learned counsel for the petitioners urged that a non-speaking order without recording pre-summoning evidence cannot be sustained.

(3.) From the rival contentions of the parties, it transpires that the controversy requires trial to ascertain and find out as to how and under what circumstances, the cheques in question were issued and delivered by P-2. P-2 has admitted her signatures on the cheques. Conflicting and inconsistent defence, whether the cheques were entrusted to the complainant for delivery to the concerned persons on instructions or stolen by him has been taken. These cheques on presentation in the bank were dishonoured with the remarks 'insufficient funds'etc. When once the issuance of cheque is validly established, the presumption would arise under Section 139 of the Negotiable Instruments Act in favour of the complainant. Such presumption of law is to be drawn without option where the factual basis for raising the presumption is established. The presumption will live, exist and survive thereafter and shall vanish only when the 'contrary is proved' by the petitioners. Such presumption can be rebutted by the drawer of the cheque but only during the course of trial and not under Section 482 Cr.P.C. The court exercising inherent powers is not justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. At this stage, the court cannot go into merits and or come to a conclusion that there was no existing debt or liability and quash the complaint. The respondent in his affidavit has clearly disclosed the procedure followed by the courts at Ahmedabad before issuance of process under Section 138 Negotiable Instruments Act.