Pushkaraj Enterprises vs Kundan Mehata Associates and Another

S.A. Bobde, J.—The petitioner has challenged the order of the learned Sessions Judge, Pune, upholding the issue of process by the Magistrate u/s 138 of the Negotiable Instruments Act.

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. 10,00,000/- was handed over to the petitioner to obtain a permission from the society. The petitioner got 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 the cheques for returning the said amount. The contention on behalf of the petitioner that the petitioner has completed the transactions 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.

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 u/s 139 of the Negotiable Instruments Act, which reads as follows:

Presumption in favour of holder-It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability.

It is no doubt open for the accused to establish to the contrary that there was no debt or liability for the discharge of which the cheques were issued. Till contrary is proved, however, there is presumption that the holder of the cheques i.e. the complainant received the cheques for the due discharge of any debt or other liability.

In the circumstances, the contentions raised by the petitioner cannot be accepted at this stage for taking the view that the process was wrongly issued against the petitioner. There is no legal infirmity in the order of the learned Sessions Judge or the Magistrate issuing process. The petition is therefore dismissed.