BHARATBHAI J PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for the sake of brevity), the petitioner has prayed for quashing of the impugned complaint dated 1.12.2009 filed against the petitioner as well as the proceedings of Criminal Case No.1503 of 2009 pending before the Court of JMFC, Dakor. It appears from the record of the petition that respondent No.2 has filed the present complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act"). As narrated in the complaint itself, the applicant decided to pay a sum of Rs.6 lacs and in turn, respondent No.2 - original complainant agreed to mortgage the property belonging to respondent No.2 being agricultural land bearing account No.178, survey No.117 part, admeasuring 26357 sq. mtrs. i.e. 11 Vighas. It is further narrated in the complaint that the applicant gave the following three cheques : <FRM>JUDGEMENT_422_TLGJ0_2013_1.html</FRM>

(2.) It is further averred in the complaint that the three cheques were deposited on 29.9.2009 with the banker of respondent No.2 i.e. Baroda Gujarat Gramin Bank, Dakor Branch and the said cheques were returned on 29.9.2009 with endorsement "insufficient funds" and respondent No.2 was informed by his banker on 30.9.2009. It is further alleged that on return of the cheques, respondent No.2 informed the petitioner. However, no satisfactory reply was given and it is alleged that the petitioner threatened respondent No.2 that the mortgage is created and no money will be given to respondent No.2. It is therefore alleged that even though there was insufficient funds in the account of the petitioner, three cheques were given and a deed of mortgage was executed in favour of the petitioner and thereby, the petitioner has committed criminal breach of trust and has cheated respondent No.2. It appears from the complaint that a notice was given by respondent No.2 through his advocate on 21.10.2009 by RPAD and the same was served upon the petitioner on 22.10.2009. It is alleged that even though the notice was issued which was additionally sent by UPC, the petitioner did not give the money of the cheques, nor did he give any reply. It is therefore alleged that the petitioner has committed breach of trust and has cheated respondent No.2. On this factual premises therefore, respondent No.2 has filed the impugned complaint for alleged offence punishable under Section 138 of the Act. It appears that after recording the statement of respondent No.2 - original complainant, by order dated 1.12.2009, the JMFC, Dakor has issued summons. The impugned complaint as well as the order dated 1.12.2009 are impugned in this petition under Article 226 of the Constitution of India read with Section 482 of the Code.

(3.) In response to the notice issued by this Court, respondent No.2 - original complainant has filed an affidavit in reply and has contended that in the complaint itself, it is specifically stated that the complainant has mortgaged his land with the accused for which the accused has agreed to pay Rs.6 lacs by issuing three cheques in question. It is further contended that there are triable issues and therefore, at this stage, without recording of evidence, it would be highly unsafe to stay the criminal prosecution. It is further contended that as held by the Hon'ble Supreme Court in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr., 1999 AIR(SC) 3762 as well as decision of this Court in the case of Goaplast Pvt. Ltd. Vs. Shri Chico Ursula D Souza & Anr., 2003 2 GLH 75, a presumption as provided under Section 139 of the Act has to be raised and it is to be presumed to have received for discharge of liability and the burden is upon the accused to rebut the said presumption. It is contended that as decided by this Court in the case of Rohit Chunubhai Mehta Vs. Gujarat State Fertilizer Co. Ltd., 2004 2 GLH 29, that a cheque is a genuine currency and has further contended relying upon the Hon'ble Apex Court judgment reported in (1999) 3 SCC 259 that it is not necessary to mention in the complaint that all the ingredients of Section 138 of the Act are present in order to implicate a person. It is contended that the petitioner-accused is creating concocted and false stories regarding no deed of mortgage being executed. It is further contended that if no such mortgage deed was executed, it is not necessary to part with the three cheques. It is further contended that the power of attorney as well as the agreement to sale has been executed. However, the petitioner-accused has not parted with the copy of the same. It is further averred by the respondent No.2 that the written application was also given to Naranpura Police Station on 9.9.2010, wherein it has been specifically averred that on 15.9.2009, respondent No.2 - original complainant was called at the hospital of the petitioner-accused and signatures were obtained on stamp paper and in the register of the notary, however, a copy was not given. It is further contended that again on 26.12.2011, advocate of respondent No.2 - original complainant gave one more application to Naranpura Police Station under the Right to Information Act inquiring as to what actions have been taken pursuant to the complaint dated 9.9.2010. It is further averred that in reply to the said application that the police authorities have given reply to the advocate of the complainant stating that on 1.6.2011, Ashram Police Choki, Naranpura Police Station has recorded the statement of the accused, wherein it is mentioned that he has given three cheques of Rs.2 lacs each, totalling to Rs.6 lacs as a loan advance. It is, therefore, contended that the petitioner is trying to mislead the Court and has changed the stand which he took in the reply to the notice issued by the complainant. It is, therefore, contended that the petition deserves to be dismissed.