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 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 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; 698A-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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