[2020 (3) Scale 343]
The appeals were made due to the impugned judgment passed by the High Court who dismissed the Criminal Misc. Application and thus declined to quash the FIR but by the same order the Court had allowed the criminal Misc. Application by quashing the criminal case filed by another appellant – Hashmukh Ravjibhai Patel against accused Yogeshbhai Muljibhai Patel u/s 138 of the Negotiable Instruments Act, 1881. The issue was related to the alleged forgery of four receipts. According to the plaintiff the criminal case can’t get registered on the basis of the four receipts as it was a subject matter of the pending litigation between the parties and thus the Court has failed to appreciate that the FIR lodged was false and frivolous. Whereas, the defendants argued that the four forged receipts were made by the Plaintiffs by forging the signatures of Respondent no. 2 and the handwriting experts too had the same opinion regarding this and thus the FIR was registered by him. It was concluded by the High court that a prima facie case of forgery and cheating is made against the Appellants and thus the Court declined to quash the FIR.
Decision of the Supreme Court:
The Apex Court observed that as regarding the authenticity of the alleged four forged documents were still pending in the civil suit FOR ought not to have been allowed as it would prejudice the interest of the parties. Section 45 of the Indian Evidence Act clearly states that though the opinion of a handwriting expert is a relevant piece of evidence but it is not conclusive evidence. And Section 73 of the same Act empowers the Court to compare the admitted and disputed writings for the purpose of forming its own opinion. Just on the basis of the sole opinion of the handwriting expert, the FIR ought not to have been registered. The plaintiff has a chance to show appropriate evidence for disproving the opinion of the handwriting expert.
If the issuance of cheque is admitted, then the presumption would arise, under Section 139 of the N.I. Act, in favour of the holder of cheque (i.e., the complainant). The nature of presumptions under Section139 of the N.I. Act and Section 118(a) of the Indian Evidence Act are rebuttable. So, the burden lies upon the accused to rebut the presumption by upholding evidence and until the accused discharges his burden, the presumption under N.I. The Act will continue to remain.
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. Thus, the Apex Court condemned the High Court for committing this serious error by quashing the criminal complaint which was filed under Section 138 of the N.I. Act. The SC contended that the HC did not keep in its view that issuance of cheques by the accused has been admitted. The appeal made by Rajeshbhai Mujlibhai Patel was allowed. The Criminal Misc. Application was dismissed and the FIR was quashed.
Section 307 of the IPC, section 114 of IPC, section 25(1) (B) (a) of the Arm’s act, section 135(1) of Bombay police act.