Case Note & Summary
The petitioners, Dattatraya Kamble and Rajaram Kadam, filed a criminal writ petition under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of FIR No. 123/2012 registered at Shirur Anantpal Police Station, Latur, for offences under Section 138 of the Negotiable Instruments Act, 1881. The complaint was filed by respondent No. 2, Dattatraya Jadhav, alleging that a cheque issued by the petitioners was dishonoured. The petitioners contended that there was no legally enforceable debt or liability and that the cheque was given as a security for a loan that was never disbursed. The court examined the record and found that the complainant had not produced any evidence of a transaction or loan. The court held that the presumption under Section 139 of the Negotiable Instruments Act does not arise unless the complainant first proves the existence of a debt or liability. Since the complainant failed to do so, the FIR was quashed as an abuse of process. The court allowed the petition and quashed the FIR.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Legally Enforceable Debt - The complainant failed to prove that the cheque was issued in discharge of a legally enforceable debt or liability. The court held that mere issuance of cheque does not attract presumption under Section 139 unless the foundational fact of debt is established. (Paras 3-5)
B) Criminal Procedure Code - Quashing of FIR - Section 482 - Abuse of Process - The court quashed the FIR as the complaint was an abuse of process of law, there being no evidence of any transaction between the parties. (Paras 4-5)
Issue of Consideration
Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881 was maintainable in the absence of proof of legally enforceable debt or liability.
Final Decision
The court allowed the petition and quashed the FIR No. 123/2012 registered at Shirur Anantpal Police Station, Latur, for offences under Section 138 of the Negotiable Instruments Act, 1881.
Law Points
- Presumption under Section 139 of Negotiable Instruments Act is rebuttable
- complainant must prove existence of debt or liability
- mere issuance of cheque does not create presumption of debt
Case Details
2012 LawText (BOM) (11) 5
Criminal Writ Petition No. 241 of 2012
A. H. Joshi, Sunil P. Deshmukh
Mr. A. A. Nimbalkar holding for Mr. V. D. Salunke for Petitioners, Mrs. V.A. Shinde, A.P.P. for Respondent No. 1 State, Mr. S.S. Mahindrakar holding for Mr. R. J. Nirmal for Respondent No. 2
Dattatraya s/o Pandhrinath Kamble and Rajaram s/o Vithoba Kadam
The State of Maharashtra and Dattatraya s/o Govindrao Jadhav
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Nature of Litigation
Criminal writ petition under Section 482 CrPC for quashing of FIR under Section 138 of Negotiable Instruments Act
Remedy Sought
Quashing of FIR No. 123/2012 registered at Shirur Anantpal Police Station, Latur
Filing Reason
Petitioners alleged that the complaint was false and there was no legally enforceable debt or liability
Issues
Whether the complaint under Section 138 of the Negotiable Instruments Act was maintainable without proof of legally enforceable debt or liability.
Submissions/Arguments
Petitioners argued that the cheque was issued as security for a loan that was never disbursed, and there was no debt or liability.
Respondent No. 2 argued that the cheque was issued in discharge of a debt.
Ratio Decidendi
The presumption under Section 139 of the Negotiable Instruments Act, 1881 does not arise unless the complainant first proves the existence of a legally enforceable debt or liability. In the absence of any evidence of a transaction, the complaint is an abuse of process and liable to be quashed under Section 482 CrPC.
Judgment Excerpts
The complainant has not produced any evidence to show that there was any transaction between the parties.
The presumption under Section 139 of the Negotiable Instruments Act does not arise unless the complainant first proves the existence of a debt or liability.
Procedural History
The petitioners filed a criminal writ petition under Section 482 CrPC before the High Court of Bombay, Bench at Aurangabad, seeking quashing of FIR No. 123/2012 registered at Shirur Anantpal Police Station, Latur, for offences under Section 138 of the Negotiable Instruments Act, 1881. The court heard both sides and passed the judgment on 21 November 2012.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 139
- Code of Criminal Procedure, 1973: 482
