Allow Cookies!
By using our website, you agree to the use of cookies
In the instant case of Shiv Kumaralias Jawahar Saraf VS Ramavtar Agrawal , the facts of the case are, the appellant had issued a post dated cheque of Central Bank of India, Main Branch Bilaspur amounting 7.8 crore against the respondent, the cheque was then presented in the bank was dishonoured. Later the respondent sent a notice which was denied by the appellant in this case.
Thereafter the complaint was filed to the Magistrate First Class who considered the material facts of the case and filed the case of offense committed and registered a criminal case in the instant case which was later brought before the District Judge to quash the order of the Magistrate first class, which was rejected by the District Judge, to which while appearing before the court for appellant Adv. Mahesh Jethmalani contended that , Judicial Magistrate could have easily by referring to the materials collected have held that there is no existing debt and hence there is no case exists under section 138 of Negotiable Instrument Act as no binding liability was ever created on the appellant and hence there was no need to register the offense and take the cognizance of the offense.
Thereafter in the present case which was then brought to the High Court , court observed that “The presumption available under Section 139 of NI Act has to be rebutted and that rebuttal can only be done after adducing evidence. This, by itself clearly reflects that the rebuttal presumption cannot be looked into at the stage of the Court taking cognizance of the offence and registering the case all that Court would have to see is whether there is a prima facie case made out meeting the conditions precedent as envisaged under Section 138 of NI Act, which in the instant case, in the opinion of this Court, the Respondent has in fact been able to establish and fulfill all such ingredients.
As has been stated in the preceding paragraphs since there is a presumption to be drawn of there being a debt or liability in part or in whole of the drawer to the holder of the instrument, the Court below cannot be said to have faulted upon in taking cognizance and in registering the offence. Since it is a rebuttal presumption and all the contentions and averments made by the counsel for the Petitioner being his defence, it would be open for him to raise all these grounds at the stage of leading evidence including the defence of existence of legally enforceable debt or liability. However, there can be no doubt that at the time of filing of complaint there was always initial presumption which would be in favour of the complainant.”
Later to which Supreme Court after hearing the learned counsel from the both sides , apex court could not find anything faulted by the High Court or the District Court in not quashing the order and the order given respectively. Thus dismissed the appeal and held that rebuttal of presumption is allowed under Section 139 Of NI Act but it is subject to the presence of Evidences from both the appellant and respondent side.
86540
103860
630
114
59824