Case: RAJESHBHAI MULJIBHAI PATEL Vs. THE STATE OF GUJARAT

471 and 114 IPC. It was submitted that since there is a prima facie case of forgery and cheating made out against the appellants, the High Court rightly declined to quash the FIR and the impugned order warrants no interference. 15. We have carefully considered the submissions and perused the impugned order and other materials on record. 16. The issue relates to the alleged forgery of four receipts dated 21.08.2010, 22.08.2010, 26.08.2010 and 28.08.2010 each for a sum of Rs.30,00,000/- totalling to Rs.1,20,00,000/- issued by respondent No.2-Mahendrakumar. For the recovery of the amount of Rs.1,20,00,000/-, appellant No.3-Hasmukhbhai filed Special Summary Suit No.105/2015 in October, 2015. After receiving summons in Summary Suit No.105/2015, respondent No.2- Mahendrakumar entered appearance and filed application seeking leave to defend and the said application was allowed on 19.04.2016. On application filed by appellant No.3-Hasmukhbhai in the Summary Suit No.105/2015, four receipts were sent to Forensic Science Laboratory for obtaining the opinion of handwriting expert. The handwriting experts report was received in the Court on 15.12.2016 to the effect that all the four receipts were not signed by respondent No.2-Mahendrakumar. It was thereafter on the complaint filed by respondent No.2, FIR No.I-194/2016 dated 28.12.2016 was registered against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. 17. In C.C.No.367/2016, case of appellant No.3-Hasmukhbhai is that Yogeshbhai issued four cheques each for a sum of Rs.30,00,000/-, details of which are as under:- table On presentation, the above cheques were dishonoured on the ground Payment stopped by the Drawer. After issuing the legal notice, appellant No.3-Hasmukhbhai filed criminal case in C.C.No.367/2016 on 08.12.2015 pertaining to two cheques bearing Nos.20801 and 20802. It was only thereafter, respondent No.2- Mahendrakumar had filed the criminal complaint dated 20.03.2016 and also filed another criminal complaint dated 14.04.2016 against appellant No.1-Rajeshbhai and appellant No.2-Vipulkumar. Since the police had not registered the FIR, respondent No.2 filed SCRA No.5945/2016 and SCRA No.6349/2016 before the High Court for seeking directions for lodging FIR. The High Court vide orders dated 04.10.2016 and 06.09.2016 disposed of those petitions directing the police to investigate into the matter. 18. Be that as it may, in the Summary Suit No.105/2015, leave to defend was granted to respondent No.2-Mahendrakumar on 19.04.2016. On the application filed by appellant No.3 in the said Summary Suit No.105/2015, four receipts filed in the suit were sent to the handwriting expert. The handwriting expert has opined that signatures in all the four receipts did not tally with the sample signatures which were of respondent No.2-Mahendrakumar. It was only thereafter, complaint was filed by Mahendrakumar, based on which, FIR No.I-194/2016 was registered on 28.12.2016 against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. As rightly contended by the learned counsel for the appellants, in the Summary Suit No.105/2015, issue No.5 has been framed by the Court whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts . When the issue as to the genuineness of the receipts is pending consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit. 19. It is also to be pointed out that in terms of Section 45 of the Indian Evidence Act, the opinion of handwriting expert is a relevant piece of evidence; but it is not a conclusive evidence. It is always open to the plaintiff-appellant No.3 to adduce appropriate evidence to disprove the opinion of the handwriting expert. That apart, Section 73 of the Indian Evidence Act empowers the Court to compare the admitted and disputed writings for the purpose of forming its own opinion. Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered. Continuation of FIR No.I-194/2016, in our view, would amount to abuse of the process of Court and the petition filed by the appellants under Section 482 Crl.P.C. in Criminal Misc. Application No.2735/2017 to quash the FIR I-194/2016 is to be allowed. 20. The High Court, in our view, erred in quashing the criminal case in C.C.No.367/2016 filed by appellant No.3-Hasmukhbhai under Section 138 of N.I. Act. As pointed out earlier, Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the N.I. Act in favour of the holder of cheque that is the complainant-appellant No.3. The nature of presumptions under Section139 of the N.I. Act and Section 118(a) of the Indian Evidence Act are rebuttable. Yogeshbhai has of course, raised the defence that there is no illegally enforceable debt and he issued the cheques to help appellant No.3-Hasmukhbhai for purchase of lands. The burden lies upon the accused to rebut the presumption by adducing evidence. The High Court did not keep in view that until the accused discharges his burden, the presumption under Section 139 of N.I. Act will continue to remain. It is for Yogeshbhai to adduce evidence to rebut the statutory presumption. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the N.I. Act on the legal issues like limitation, etc. Criminal complaint filed under Section 138 of the N.I. Act against Yogeshbhai ought not have been quashed merely on the ground that there are inter se dispute between appellant No.3 and respondent No.2. Without keeping in view the statutory presumption raised under Section 139 of the N.I. Act, the High Court, in our view, committed a serious error in quashing the criminal complaint in C.C.No.367/2016 filed under Section 138 of N.I. Act.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16. The issue relates to the alleged forgery of four receipts dated 21.08.2010, 22.08.2010, 26.08.2010 and 28.08.2010 each for a sum of Rs.30,00,000/- totalling to Rs.1,20,00,000/- issued by respondent No.2-MahendrakumarAs rightly contended by the learned counsel for the appellants, in the Summary Suit No.105/2015, issue No.5 has been framed by the Court whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts .When the issue as to the genuineness of the receipts is pending consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit19. It is also to be pointed out that in terms of Section 45 of the Indian Evidence Act, the opinion of handwriting expert is a relevant piece of evidence; but it is not a conclusive evidence. It is always open to the plaintiff-appellant No.3 to adduce appropriate evidence to disprove the opinion of the handwriting expert. That apart, Section 73 of the Indian Evidence Act empowers the Court to compare the admitted and disputed writings for the purpose of forming its own opinion. Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered. Continuation of FIR No.I-194/2016, in our view, would amount to abuse of the process of Court and the petition filed by the appellants under Section 482 Crl.P.C. in Criminal Misc. Application No.2735/2017 to quash the FIR I-194/2016 is to be allowed20. The High Court, in our view, erred in quashing the criminal case in C.C.No.367/2016 filed by appellant No.3-Hasmukhbhai under Section 138 of N.I. Act. As pointed out earlier, Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the N.I. Act in favour of the holder of cheque that is the complainant-appellant No.3. The nature of presumptions under Section139 of the N.I. Act and Section 118(a) of the Indian Evidence Act are rebuttable. Yogeshbhai has of course, raised the defence that there is no illegally enforceable debt and he issued the cheques to help appellant No.3-Hasmukhbhai for purchase of lands. The burden lies upon the accused to rebut the presumption by adducing evidence. The High Court did not keep in view that until the accused discharges his burden, the presumption under Section 139 of N.I. Act will continue to remain. It is for Yogeshbhai to adduce evidence to rebut the statutory presumption. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the N.I. Act on the legal issues like limitation, etc. Criminal complaint filed under Section 138 of the N.I. Act against Yogeshbhai ought not have been quashed merely on the ground that there are inter se dispute between appellant No.3 and respondent No.2. Without keeping in view the statutory presumption raised under Section 139 of the N.I. Act, the High Court, in our view, committed a serious error in quashing the criminal complaint in C.C.No.367/2016 filed under Section 138 of N.I. Act.