PUSHKARAJ ENTERPRISES Vs. KUNDAN MEHATA ASSOCIATES

JUDGEMENT

(1.) The Petitioner has Challenged the Order of The Learned Sessions Judge, Pune, Upholding The Issue Of Process By The Magistrate Under Section 138 Of The Negotiable Instruments Act.

(2.) The learned counsel for the petitioner submitted that the averments in the complaint show that the so-called liability for which the cheques were issued is a non existent liability and in any case is a civil liability for which the petitioner could not be prosecuted under the provisions of the Negotiable Instruments Act. The learned counsel relies on the averments in the complaint where the complainant has stated that an amount of Rs. 2, 10,00,000/- was handed over to the petitioner to obtain a permission from the society. The petitioner got a permission under a letter dated 1st January 2007. Thereafter according to the respondent complainant they told the petitioner that they are not interested in developing the property and asked for return of Rs.10,00,000/-. The petitioner thereupon is said to have issued two cheques for returning the said amount. The contention on behalf of the petitioner is that the petitioner has completed the transaction for which a sum of Rs.10,00,000/- was advanced and therefore there was no liability when the petitioner had to discharge by returning the said amount.

(3.) This argument though plausible does not explain why the petitioner issued two cheques for the sum of Rs.10,00,000/- in total, payable to the complainant. According to the learned counsel for the petitioner cheques were issued because the respondents threatened the petitioner. According to the learned counsel the fact of threat can be easily understood from the averments in the complaint because there is no reason why the petitioner would have issued two cheques even after completion of assignment of getting the permission. Whatever be the truth of the matter. The fact is that the petitioner has issued two cheques which have been dishonoured. The issuance of these cheques raises a presumption under section 139 of the Negotiable Instruments Act, which reads as follows:-