K R SURENDRAN Vs. P V SUBRAMANIAM

JUDGEMENT

(1.) HEARD learned counsel appearing on behalf of the petitioner and learned counsel appearing on behalf of Respondent No.1. By this petition, the petitioner is challenging an order of issuance of process passed by IV J.M.F.C. Thane on a complaint filed by Respondent No.1 under Section 138 of the Negotiable Instruments Act.

(2.) THE petitioner is also challenging the order passed by the said Magistrate rejecting the application filed by the petitioner for recalling the process which was issued by him.

(3.) IT is submitted by the learned counsel appearing on behalf of the petitioner/accused that the story put up by the complainant in his complaint is fictitious inasmuch as the agreement, which was executed by the accused for the purpose of gala, was executed in the year 1991 and, therefore, when the alleged amount of Rs.Seven lakhs was given by the complainant to the accused, at that time he had already purchased the gala. He, therefore, submitted that this clearly indicates that the averments made in the complaint are false and fabricated which was evident from the agreement for sale which was executed on 31.01.1991 by the accused with the owner of the said gala. He further submitted that the cheques, which were issued, were blanks cheques and, as such the complainant did not establish that the said cheques were issued towards the payment of debt or enforceable liability. He invited my attention to the cheque record slip wherein details of transaction in respect of the petitioner's cheque book maintained by him in order to establish that the said cheques, which were issued, were blanks cheques on the basis of documents annexed to the petition. It was also submitted that the said cheques were not issued for the purpose of payment of debt or legally enforceable liability. The learned counsel for the petitioner/accused then submitted that the Supreme Court had held that if the accused, in an application which is filed under Section 482 of the Cr.P.C. and Section 227 of the Constitution of India, produces evidence, which would indicate that there was no legally enforceable liability, then the High Court while exercising its jurisdiction under Sections 482 of the Cr.P.C. and 227 of the Constitution of India was competent to come to the conclusion that the presumption, which is raised under Section 139 of the Negotiable Instruments Act, is rebutted by the accused and, on that ground the complaint was liable to be quashed. The learned counsel for the petitioner/accused, however, after carefully going through a small bunch of judgments, could not produce the judgment of the Supreme Court. In my view this submission of the learned counsel for the petitioner cannot be accepted. He further submitted that the suit, which was filed by the complainant for dishonoured cheques, has been decreed recently and, that in the said case he had given evidence to the effect that he did not have any evidence besides the dishonoured cheques to show that the cheques were issued towards legally enforceable debt or liability.