This application sought quashing of a summoning order in a cheque dishonour case. The court held that a prima facie case exists due to Section 139 presumption of liability and dismissed the plea to quash, requiring the applicant to rebut the presumption during trial.
The application for quashing of the summoning order is dismissed.
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Neutral Citation No. - 2024:AHC:124149
HIGH COURT OF JUDICATURE AT ALLAHABAD
(Sl No.18)
Court No. - 79
Case :- APPLICATION U/S 482 No. - 18034 of 2024
Applicant :- Anamika Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Manish Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Anish Kumar Gupta,J.
1. Supplementary affidavit filed today on behalf of the applicant is taken on record.
2. Heard Sri Manish Kumar Singh, learned counsel for the applicant and Sri Prem Prakash Tiwari, learned A.G.A. for the State.
3. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the summoning order dated 26.04.2022 in Complaint Case No. 257 of 2022 (Sky Net Infraventures Pvt. Ltd. vs. Anamika Singh) u/S 138 of the Negotiable Instruments Act, 1881 (in short, ' the N.I. Act '), P.S.Kotwali, District- Prayagraj, pending in the court of learned Magistrate, Court No.2 Allahabad.
4. Learned counsel for the applicant submits that the applicant herein was an employee of the opposite party no.2 and in such business transactions the cheques were issued by her to the opposite party no.2, during subsistence of her employment as security to any balance payment remains with the applicant herein, which has been mis-utilized by the opposite party no.2 and the instant complaint case has been filed. Learned counsel for the applicant further submits that the description of the sale deed as has been executed with regard to a flat by the opposite party no.2, the same was purchased by the applicant on loan for which the installments are being paid by the applicant. Therefore, there was no existing liability against the applicant towards the opposite party no.2 and despite that the opposite party no.2 has mis-utilized the cheque and has filed the instant complaint case, therefore, learned counsel for the applicant
seeks quashing of the entire proceedings of the instant case.
5. Per contra, learned A.G.A. submits that the once the cheque is issued by the applicant the presumption under Section 139 of the N.I. Act shall be drawn against the applicant that the said cheque was issued in pursuance of the existing liability or debt by the applicant herein. However, whether there exists any actual liability or debt, is a question of fact which can be proved by the applicant before the trial court by leading the proper evidence to rebut the said presumption under Section 139 of the N.I. Act. Therefore, no interference is called for at this stage as the prima facie case in view of the presumption under Section 139 of the N.I. Act, is made out against the applicant.
6. Having heard the rival submissions made by learned counsels for the parties, this Court has carefully gone through the record of the case. From the record of the case, as stated in the complaint case under Section 138 of the N.I. Act, the applicant herein was in employment with the opposite party no.2 and during such employment the opposite party no.2 has facilitated the applicant herein to purchase a flat and financed the same by providing loan to the applicant herein and it was agreed between the parties that when the applicant leaves the employment under the opposite party no.2, she shall leave the flat in favour of the opposite party no.2 and since the applicant has left the job and did not hand over the flat to the opposite party no.2, thereupon, the opposite party no.2 has demanded the money in part payment thereof, the applicant has issued a cheque dated 31.01.2022, which was got dishonored with remarks "Account Closed". Thereafter, a legal notice was issued on 25.02.2022. Despite the service of notice the applicant herein failed to comply with the demand notice. The instant complaint case under Section 138 of the N.I. Act, was filed. From the aforesaid narration of the facts and specifically the fact that the applicant has not denied the issuance of the cheque, however, she disputes the liability and submits that the said cheque was issued as a security cheque during her employment to the opposite party no.2, therefore, the presumption under Section 139 of the N.I.Act, shall come into play against the applicant herein and it shall be presumed that there was an existing liability and in discharge thereof the instant cheque was issued by the applicant. However, the said presumption is rebuttable, which can be rebutted by the applicant during the trial by leading the proper evidence before the trial court, which shall be dealt with by the trial court in accordance with law.
7. Since, a prima facie case has been made against the applicant, therefore, this Court does not find any good reason to
interfere with the instant case and the same is accordingly dismissed .
Order Date :- 1.8.2024 Shubham Arya
(Anish Kumar Gupta, J.)
Digitally signed by :- SHUBHAM ARYA High Court of Judicature at Allahabad
2 issues framed by the court
Whether the High Court should quash the summoning order under Section 138 NI Act based on a civil dispute regarding flat purchase loan.
Whether the presumption under Section 139 NI Act regarding existing debit or liability is rebuttable at the trial stage.
3 provisions across 2 enactments
Anamika Singh
Anish Kumar Gupta
As recorded by the court registry
2 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
