Case: RAJESHBHAI MULJIBHAI PATEL Vs. THE STATE OF GUJARAT

3. Brief facts which led to the filing of these appeals are as under:- Appellant No.1-Rajeshbhai Muljibhai Patel is the real brother of Yogeshbhai Muljibhai Patel who is the accused in C.C.No.367/2016 filed under Section 138 of N.I. Act by appellant No.3-Hashmukhbhai Ravjibhai Patel. Both appellant No.1- Rajeshbhai and his brother Yogeshbhai are stated to be residents of United Kingdom. In this appeal, appellant No.1-Rajeshbhai is represented through his Power of Attorney holder-appellant No.2- Vipulkumar Hasmukhbhai Patel. Respondent-Yogeshbhai is represented through his Power of Attorney holder-another respondent-Mahendrakumar Javaharbhai Patel4. On 08.12.2015, appellant No.3-Hasmukhbhai Ravjibhai Patel filed a criminal case being C.C.No.367/2016 against accused Yogeshbhai under Section 138 of N.I. Act. The father of appellant No.1-Rajeshbhai and Yogeshbhai had agricultural lands bearing Block/Survey Nos.534, 536/1/A, 536/1/B, 538, 539, 540, 541/1, 542 and 543 situated at Village Fofaliya, Ta. Dabhoi, District Vadodara. In 2010, in order to sell his fathers land, Yogeshbhai called up appellant No.3 who is also the maternal uncle of Yogeshbhai and Rajeshbhai. Since appellant No.3 was also planning of buying some agricultural land from the surplus funds which he has received from the sale of his agricultural land, he accepted the proposal of Yogeshbhai. Yogeshbhai who is residing in United Kingdom showed his intention to come to India for executing the sale deed of his lands in favour of appellant No.3 and asked to pay the money to respondent No.2-Mahendrakumar Javaharbhai Patel. Accordingly, appellant No.3 gave Rs.30,00,000/- each on four days viz. 21.08.2010, 22.08.2010, 26.08.2010 and 28.08.2010 as part payment, the total amounting to Rs.1,20,00,000/- to respondent No.2-Mahendrakumar, who issued receipts for the said payments of amount for and on behalf of accused Yogeshbhai. In 2015, accused Yogeshbhai came to India and arranged meeting with appellant No.3. In the meeting, Yogeshbhai informed appellant No.3 that he has already executed a registered Sale Deed No.1229/2013 dated 16.07.2013 in favour of one M/s Brentwood Industries India Pvt. Ltd. thereby, selling the above referred lands to that company which was agreed to be sold to appellant No.35. Knowing all these facts, appellant No.3 demanded his legal outstanding debt from Yogeshbhai immediately i.e. total of Rs.1,20,00,000/- and Yogeshbhai promised to refund the amount by issuing four cheques each of Rs.30,00,000/- each in favour of appellant No.3. Accordingly, accused Yogeshbhai issued cheques bearing Nos.8108 and 8109 of NRO Account No.08540107512 on 12.10.2015 and cheque Nos.20801 and 20802 of NRE Account No.085401000566 on 30.10.2015. As per appellant No.3, at the time of issuance of cheques, Yogeshbhai gave assurance of the clearance of above cheques6. Two cheques bearing Nos.8108 and 8109 dated 12.10.2015 of NRO Account No.08540107512 amounting to Rs.30,00,000/- each were dishonoured on the same day i.e. on 12.10.2015 on the ground of Payment stopped by the Drawer. The third cheque was of NRE Account No.085401000566 with cheque bearing No.20801 dated 30.10.2015 amounting to Rs.30,00,000/- and the fourth cheque was also of NRE Account No.085401000566 with cheque bearing No.20802 dated 30.10.2015 amounting to Rs.30,00,000/-. When those two cheques drawn on NRE Account No.085401000566 were presented before the Bank on the same day i.e. on 30.10.2015, those cheques were also returned on the same day with the endorsement Payment stopped by the Drawer. Thereafter, appellant No.3 sent a legal notice to Yogeshbhai on 17.11.2015 demanding payment of money which notice was delivered on 23.11.20157. Insofar as dishonor of cheques bearing Nos.8108 and 8109 dated 12.10.2015 of NRO Account No.08540107512, they were returned unpaid on 12.10.2015. The Complainant issued notice on 17.11.2015 and therefore, claim qua the two cheque Nos.8108 and 8109 are barred by limitation under the provisions of Negotiable Instruments Act. The complaint therefore, pertains only for cheque Nos.20801 and 20802 of NRE Account No.085401000566 which were returned unpaid on 30.10.2015. Complaint under Section 138 of N.I. Act against Yogeshbhai was taken on file on 05.02.2016 in C.C.No.367/2016. On 06.09.2016, the Court of 5 th Additional Civil Judge & JMFC, Bharuch issued a bailable warrant for production of accused Yogeshbhai8. Appellant No.3-Hasmukhbhai has filed a Special Summary Suit No.105/2015 before the Additional Chief Judicial Magistrate, Vadodara for recovery of Rs.1,20,00,000/- under Order 37 of CPC. Summary Suit No.105/2015 filed by appellant No.3 was based on the four receipts issued by respondent No.2-Mahendrakumar. The Court in that case has issued summons for appearance against Yogeshbhai and Mahendrakumar which has been served on 01.11.2015. According to the respondents, they came to know about those four receipts only after they have been served with summons in the said suit. Alleging that the appellants have forged and fabricated the four receipts, respondent No.2-Mahendrakumar has filed the complaint for cheating and forgery against the appellants. Based on the said complaint, FIR No.I-194/2016 was registered against the appellants under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. Respondent No.2-Mahendrakumar has alleged that the appellants joined together and prepared fabricated receipts of Rs.1,20,00,000/- bearing forged signature of respondent No.2 and produced these forged receipts as true9. In the FIR, it was averred that Yogeshbhai, who is residing in United Kingdom had executed a power of attorney dated 14.03.2013 in favour of Mahendrakumar for administration of his lands. On the basis of this power of attorney, Mahendrakumar executed an Agreement to Sale in favour of one Jigneshbhai Dhanesh Chandra Shah on 16.04.2013. Thereafter, Yogeshbhai came from London and executed a registered Sale Deed No.1229/2013 dated 16.07.2013 in favour of M/s Brentwood Industries India Pvt. Ltd. for Rs.6,16,44,000/-. In the sale deed, the agreement to sale holder has signed as confirming party. In consideration of the sale deed, the land owner was to receive Rs.6,16,44,000/- and the confirming party-Jigneshbhai was to receive Rs.1,13,94,000/-. Yogeshbhai is the elder brother of appellant No.1-Rajeshbhai. Appellant No.1 had filed a Special Civil Suit No.284/2013 before the Court of Principal Civil Judge, Bharuch claiming his share in the said land sold by Yogeshbhai. In the said suit, Yogeshbhai, his mother Kanchanben, respondent No.2- Mahendrakumar and Jigneshbhai were arraigned as defendants. The said suit was compromised between appellant No.1 and Yogeshbhai in London and Yogeshbhai was to pay Rs.90,00,000/- to Rajeshbhai-appellant No.1. Appellant No.1 agreed to issue NOC and promised that his power of attorney holder-appellant No.2- Vipulkumar Hasmukhbhai Patel will issue NOC. Accordingly, Yogeshbhai had come from London and his power of attorney holder-appellant No.2-Vipulkumar had executed NOC letter in presence of Notary H.J. Zala on 23.09.2015. There was various correspondence between the parties and the company M/s Brentwood Industries India Pvt. Ltd. regarding payment of said Rs.90,00,000/-10. Appellants No.1 to 3 filed Criminal Misc. Application No.2735/2017 before the High Court under Section 482 Cr.P.C. for quashing of FIR No.I-194/2016. Yogeshbhai who is the accused in the criminal case being C.C.No.367/2016 also filed Criminal Misc. Application No.24588/2017 for quashing of cheque case filed against him under Section 138 of N.I. Act. Yogeshbhai claimed that he has given the cheques to appellant No.3-Hasmukhbhai who approached him requesting for help to purchase land. Yogeshbhai alleged that the appellants have forged the receipts issued by respondent No.2-Mahendrakumar. In this regard, Yogeshbhai placed reliance upon the report of the hand-writing expert, Directorate of Forensic Science dated 15.12.2016 as per which, the disputed signatures of Mahendrakumar Javaharbhai on the receipts were not written by him i.e. respondent No.2-Mahendrakumar Javaharbhai11. Vide the impugned judgment dated 14.12.2018, the High Court dismissed Criminal Misc. Application No.2735/2017 and declined to quash the FIR No.I-194/2016. The High Court held that on the basis of four receipts allegedly issued by Mahendrakumar, the third appellant-Hasmukhbhai has filed the Summary Suit No.105/2015 for recovery of Rs.1,20,00,000/-. The High Court referred to the hand-writing experts opinion who has opined that the signatures found in the receipts do not tally with the signature of respondent No.2-Mahendrakumar. The High Court held that looking into the allegations and the facts, prima facie case of forgery and cheating are made out against the appellants and accordingly, declined to quash the FIR No.I-194/2016 and dismissed Criminal Misc. Application No.2735/201712. On the basis of order passed in Criminal Misc. Application No.2735/2017, the Criminal Misc. Application No.24588/2017 filed by Yogeshbhai was allowed and the criminal case in C.C.No.367/2016 filed by appellant No.3-Hasmukhbhai under Section 138 of N.I. Act was quashed. The High Court held that based on the alleged forged receipts, criminal case has been filed under Section 138 of N.I. Act and the cheque case cannot be proceeded with and accordingly, quashed the criminal case in C.C.No.367/2016 filed under Section 138 of N.I. Act. Being aggrieved, the appellants have filed these appeals.

Reasoning:
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.