Hrishikesh Roy JUDGMENT
Hrishikesh Roy, J.
1. Leave granted.
2. The challenge in these appeals is to the judgment and order dated 02.08.2019 in the Crl.M.C. No. 414/2019 and Crl.M.A. No. 1754/2019 whereby the Delhi High Court dismissed the application Under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") for quashing of the summoning order dated 1.6.2018 and the order framing notice dated 3.11.2018, issued against the Appellant Under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'N.I. Act'). On the criminal complaint instituted by one Satish Gupta (Respondent No. 2), the order Under Section 251 of the Code of Criminal Procedure was issued against the Appellant by the Magistrate's Court. The High Court on considering the rival contention opined that the grounds agitated by the Appellant are "factual defences" which should not be considered within the parameters of limited enquiry permissible in a petition Under Section 482 Code of Criminal Procedure Accordingly, the petition was dismissed but the Accused's liberty to raise his defence in the competent Court was safeguarded in the impugned order.
3. For the Appellant, Mr. Krishnamohan K., the learned Counsel argues that without satisfying the essential ingredients for the offence Under Section 138 of the N.I. Act to the effect that the dishonoured cheque received by the complainant is against "legally enforceable debt or liability", the criminal process could not have been issued. Relying on few judgments, it is next argued that the ingredients necessary to constitute the offence Under Section 138 of the N.I. Act is missing in the instant case and therefore the Appellant cannot be prosecuted for the offence under the said provision. According to the Appellant, the concerned post-dated cheques drawn by him in favour of the complainant were, contingent/security cheques for buyback of shares of AAT Academy (Appellant's company), held by the complainant, and therefore the cheques could not have been prematurely presented to the bank and should have been presented for encashment only after transfer of the complainant's shareholding in the Appellant's company. In other words, as the complainant was still holding the shares of the Appellant's company when the cheques were presented, the complainant is not entitled to receive any payment at that stage, through encashment of the cheques, made available to him.
4. The complainant per-contra contends that when the cheque are issued and the signatures thereon are admitted, the presumption of a legally enforceable debt will arise in favour of the holder of the cheque. In a situation such as this, it is for the Accused to rebut the legal presumption by adducing necessary evidence before the trial Court. Reading the provisions of Section 118 of the N.I. Act, it is submitted by Mr. K.M. Nataraj, ........