RAJESHBHAI MULJIBHAI PATEL AND OTHERS ETC. versus  STATE OF GUJARAT AND ANOTHER ETC.
[2020] 2 S.C.R. 687, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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RAJESHBHAI MULJIBHAI PATEL AND OTHERS ETC.
v.
STATE OF GUJARAT AND ANOTHER ETC.
(Criminal Appeal Nos. 251-252 of 2020)
FEBRUARY 10, 2020
[R. BANUMATHI AND A.S.BOPANNA, JJ.]
Negotiable Instruments Act, 1881 – ss.138 and 139 –
Appellant no.1 is real brother of respondent-accused in a criminal
case filed u/s.138 by their maternal uncle-appellant no.3 – Both
the brothers are residents of UK – Their father had agricultural
lands in India – In order to sell the same, accused called up appellant
no.3, who gave Rs.30,00,000/- each on four days to respondent
no.2 who issued receipts for and on behalf of accused – Accused
later informed appellant no.3 that he had already sold the aforesaid
lands to a company – Appellant no.3 demanded his legal outstanding
debt of Rs.1,20,00,000/- – Accused issued 4 cheques – Dishonoured
– Claim against 2 cheques is barred by limitation – Criminal case u/
s.138 concerns only 2 cheques – Appellant no.3 filed Summary Suit
for recovery of Rs.1,20,00,000/- based on four receipts – FIR
registered against appellants alleging forgery and fabrication of
the four receipts – Appellant nos.1-3 sought its quashing – Accused
also sought quashing of the criminal case filed against him u/s.138
– High Court declined to quash the FIR – Criminal case u/s.138
was quashed – Held: Four receipts filed in the suit were sent to
handwriting expert who opined that signatures therein did not tally
with respondent no.2’s sample signatures – It was only
thereafter
that FIR was registered against the appellants – Based on sole
opinion of handwriting expert, the FIR ought not to have been
registered – When the issue as to the genuineness of receipts is
pending consideration in the civil suit, continuation of FIR would
prejudice the interest of parties and their stand in the civil suit –
Further, the accused admitted issuance of cheques – When once
the issuance of cheque is admitted/established, the presumption
would arise u/s.139 in favour of the holder of cheque-appellant
no.3 – Nature of presumptions u/s.139 & s.118(a), 1872 Act are
rebuttable – High Court did not keep in view that until the accused
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discharges his burden to rebut the statutory presumption, the
presumption u/s.139 will continue to remain – Impugned order set
aside – FIR against the appellants is quashed – Criminal case filed
by appellant no.3 u/s.138 is restored – Same be disposed of in
accordance with law – Summary Suit be proceeded in accordance
with law, uninfluenced by views expressed by High Court in the
impugned order – Code of Civil Procedure, 1908 – Or.37– Penal
Code, 1860 – ss.406, 420, 465, 467, 468, 471 & 114 – Code of
Criminal Procedure, 1973 – s.482 – Evidence Act, 1872 – ss.45, 73
and 118(a).
Allowing the appeals, the Court
HELD: 1.1 The handwriting expert opined that signatures
in all the four receipts did not tally with the sample signatures
which were of respondent No. 2. It was only thereafter, complaint
was filed by him, 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 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, 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.  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, would amount to abuse of the process of Court.
[Paras 18, 19][696-F-H; 697-A-D]
1.2 The High Court erred in quashing the criminal case in
C.C.No.367/2016 filed by appellant No.3 under Section 138 of
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N.I. Act. Accused 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. 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 accused
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 accused 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, committed a serious error in quashing the criminal
complaint in C.C.No.367/2016 filed under Section
138 of N.I. Act.
The impugned order is set aside. [Paras 20, 21][697-D-H; 698-
A-B]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 251-252 of 2020.
From the Judgment and Order dated 14.12.2018 of the High Court
of Gujarat at Ahmedabad in R/Criminal Misc. Application No. 2735/
2017 and in R/Criminal Misc. Application No. 24588/2017.
D. N. Parikh, Ms. J. S. Mekwan and Rameshwar Prasad Goyal,
Advs. for the Appellants.
Ms. Aishwarya Bhati, Sr. Adv., Chitrangda Rastravara, Ms. Kirti
Khangarot, Jaideep Singh, Nitin P., Ms. Celeste Agarwal, Ms. Oorjasvi
Goswami, P. Thaknani, Gp. Capt. Karan Singh Bhati, Aniruddha P. Mayee
Ms. Deepawati Priyanka, Advs. for the Respondents.
RAJESHBHAI MULJIBHAI PATEL AND OTHERS v.
STATE OF GUJARAT AND ANOTHER
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[2020] 2 S.C.R.
The Judgment of the Court was delivered by
R. BANUMATHI, J.
1. Leave granted.
2. These appeals arise out of the impugned judgment dated
14.12.2018 passed by the High Court of Gujarat at Ahmedabad dismissing
Criminal Misc. Application No.2735/2017 thereby declining to quash the
FIR No.I-194/2016. By the same order, the High Court has allowed
Criminal Misc. Application No.24588 of 2017 and quashed the criminal
case in C.C.No.367/2016 filed by appellant No.3-Hashmukhbhai
Ravjibhai Patel against accused Yogeshbhai Muljibhai Patel under Section
138 of N.I. Act.
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 Patel.
4. 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
father’s 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
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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.3.
5. 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 cheques.
6. 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 23.11.2015.
7. 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
RAJESHBHAI MULJIBHAI PATEL AND OTHERS v.
STATE OF GUJARAT AND ANOTHER  [R. BANUMATHI, J.]
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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 5th Additional Civil Judge & JMFC, Bharuch issued a bailable
warrant for production of accused Yogeshbhai.
8. 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 true.
9. 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
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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 Javaharbhai.
11. 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 expert’s
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.2735/2017.
12. 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
RAJESHBHAI MULJIBHAI PATEL AND OTHERS v.
STATE OF GUJARAT AND ANOTHER  [R. BANUMATHI, J.]
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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.
13. Mr. D.N. Parikh, learned counsel for the appellants has
submitted that the High Court has failed to appreciate that the FIR lodged
by respondent No.2-Mahendrakumar is false and frivolous as the same
subject matter is pending consideration in Summary Suit No.105/2015.
It was submitted that at least two cases viz. Special Summary Suit No.105/
2015 and criminal case in C.C.No.367/2016 filed under Section 138 of
N.I. Act are pending before the competent court and while so, the criminal
case could not have been registered on the four receipts which are the
subject matter of the pending litigations between the parties. It was further
submitted that in the Summary Suit No.105/2015, issue No.5 framed by
the Court is “whether the defendant proved that the plaintiff has
fabricated the forged signature illegally and created forged receipts”
and the FSL report-report of the handwriting expert is filed in the said
suit and the Civil Court is yet to determine the issue as to the genuineness
of the receipts. Learned counsel submitted that the High Court has failed
to appreciate that the opinion of the
handwriting expert is relevant
evidence, but it is not a conclusive evidence and Section 73 of the Indian
Evidence Act empowers the Court to compare the admitted and disputed
writings for the purpose of forming Court’s opinion. It was contended
that when the genuineness of four receipts is an issue in the civil suit and
the dispute is of civil nature, the continuation of the criminal case is an
abuse of process of the Court and the FIR No.I-194/2016 is liable to be
quashed. It was also contended that the High Court erred in quashing
the cheque case filed under Section 138 of N.I. Act and the High Court
did not keep in view that issuance of cheques by Yogeshbhai from his
NRE Account has been admitted.
14. Refuting the above contentions, Ms. Aishwarya Bhati, learned
Senior counsel for the respondents has submitted that appellant No.3-
Hashmukhbhai is the maternal uncle of Yogeshbhai and relying upon the
words of appellant No.3 and his son-appellant No.2-Vipulkumar,
Yogeshbhai issued two cheques bearing Nos.8108 and 8109 for Rs.
30,00,000/- each from his NRO Account and after issuing the cheques,
Yogeshbhai realised that there was no funds in the said account and he
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asked appellant No.3 to return the above cheques and collect new cheques
of another account. It was submitted that thereafter Yogeshbhai issued
new cheques of NRE Account bearing Nos.20801 and 20802 of
Rs.30,00,000/- each and at that time, appellant No.3 had told that he had
not brought the old cheques with him and will return the old cheques in a
day or two but never returned the cheques. Learned Senior counsel
submitted that Yogeshbhai got suspicious and on making enquiry, he found
that appellants No. 2 and 3 were not intending to purchase any lands and
thus, he has instructed the Bank to stop payment for all the four cheques.
Learned Senior counsel further submitted that appellants made four
forged receipts of Rs.30,00,000/- each by forging the signatures of
respondent No.2-Mahendrakumar and the handwriting expert opined
that four receipts relied upon by appellant No.3-Hasmukhbhai have not
been signed by respondent No.2-Mahendrakumar and on the basis of
FSL report, FIR No.I-194/2016 has been registered under Sections 406,
420, 465, 467, 468, 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 expert’s 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.
RAJESHBHAI MULJIBHAI PATEL AND OTHERS v.
STATE OF GUJARAT AND ANOTHER  [R. BANUMATHI, J.]
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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:-
S.No.
Date
Cheque 
No. 
Account
Amount
Date of 
Dishonour 
1.
12.10.2015
8108
NRO 
Account 
No.08540107512 
Rs.30,00,000/-
12.10.2015
2.
12.10.2015
8109
NRO 
Account 
No.08540107512 
Rs.30,00,000/-
12.10.2015
3.
30.10.2015
20801
NRE 
Account 
No.085401000566 
Rs.30,00,000/-
30.10.2015
4.
30.10.2015
20802
NRE 
Account 
No.085401000566 
Rs.30,00,000/-
30.10.2015
Total
Rs.1,20,00,000/-
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
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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
RAJESHBHAI MULJIBHAI PATEL AND OTHERS v.
STATE OF GUJARAT AND ANOTHER  [R. BANUMATHI, J.]
A
B
C
D
E
F
G
H
698
SUPREME COURT REPORTS
[2020] 2 S.C.R.
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.
21. In the result, the impugned order is set aside and these appeals
are allowed. Criminal Misc. Application No.2735/2017 filed by the
appellants is allowed and the FIR No.I-194/2016 is quashed. Criminal
Misc. Application No.24588/2017 filed by Yogeshbhai Muljibhai Patel
stands dismissed. Case filed by appellant No.3-Hasmukhbhai Ravjibhai
Patel under Section 138 of N.I. Act - C.C.No.367/2016 stands restored.
The 5th Additional Civil Judge & JMFC, Bharuch is directed to proceed
with the case in C.C.No.367/2016 filed under Section 138 of N.I. Act
and afford sufficient opportunity to both the parties and dispose the same
in accordance with law. The Summary Suit No.105/2015 shall be
proceeded in accordance with law without being influenced by any of
the views expressed by the High Court in the impugned order.
Divya Pandey
Appeals allowed.