Saroj Walia Alias Saroj Bala vs Sarabjit Singh

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CRM-M-52595-2022 (O&M)
111 IN THE HIGH COURT OF PUNJAB AND HARYANA
CHANDIGARH
CRM-M-52595-2022 (O&M)
Date of Decision: 11.11.2026
SAROJ WALIA ALIAS SAROJ BALA …Petitioner
V/S
SARABJIT SINGH …Respondent
CORAM: HON’BLE MS. JUSTICE SHALINI SINGH NAGPAL
Present: Mr. Bhupinder Ghai, Advocate
for the petitioner.

SHALINI SINGH NAGPAL J. (Oral)
1. Prayer in the petition under Section 482 of the Code of Criminal
Procedure is for quashing of complaint bearing NACT No. 2454 of 2019
titled ‘ Sarabjit Singh Walia Vs. Saroj Walia @ Saroj Bala’ , under Section
138 of Negotiable Instruments Act, 1885 and order dated 17.07.2019 of
learned JMIC, Kapurthala vide which petitioner was summoned to face the
trial under Section 138 of Negotiable Instrument Act.
2. Learned counsel for the petitioner submits that petitioner was an
82 years old illiterate lady. A false complaint was filed against her by
respondent, who forged her signatures on the cheque and filled up the body
of the cheque himself. The cheque, in fact, was stolen by respondent from
house of the petitioner, behind her back, when her son was in judicial
custody in a criminal case. He also committed theft of another cheque of her
son, which also he forged to file another complaint against him. Learned
counsel further argued that petitioner never issued any cheque to the
respondent in discharge of legal liability. The allegation in the complaint that
₹
respondent paid a sum of 11,00,000/- in the shape of a demand draft to the
petitioner in February 2016 for sending him abroad, was false. No document
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CRM-M-52595-2022 (O&M)
was placed on record to show prima facie that petitioner was running an
₹
immigration office and had received 11,00,000/- from respondent by
encashing the demand draft. Petitioner’s statement of account on record as
₹
Annexure P-7 did not show any receipt of 11,00,000/- from the respondent.
The complaint was filed with mala fide intention to harass and blackmail the
petitioner. Respondent even mentioned false address of the petitioner on the
legal notice, which was never delivered to her. Thus, the impugned
complainant and summoning order dated 17.07.2019 deserved to be
quashed.
3. Respondent has not opted to contest the petition despite being
served.
4. Relevant for decision of the matter are the presumptions attached
to a Negotiable instrument, as provided under Section 118 of the Negotiable
Instruments Act, which reads as under:-
S.118 Presumptions as to negotiable instruments:
Until the contrary is proved, the following presumptions shall be
made:
1. of consideration; that every negotiable instrument was made or
drawn for consideration, and that every such instrument, when it
has been accepted, indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or transferred for consideration;
2. as to date; that every negotiable instrument bearing a date was
made or drawn on such date;
3. as to time of acceptance; that every accepted bill of exchange was
accepted within a reasonable time after its date and before its
maturity;
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CRM-M-52595-2022 (O&M)
4. as to time of transfer; that every transfer of a negotiable instrument
was made before its maturity;
5. as to order of indorsements; that the indorsements appearing upon
a negotiable instrument were made in the order in which they
appear thereon;
6. as to stamp; that a lost promissory note, bill of exchange or cheque
was duly stamped;
7. that holder is a holder in due course; that the holder of a negotiable
instrument is a holder in due course: Provided that, where the
instrument has been obtained from its lawful owner, or from any
person in lawful custody thereof, by means of an SP offence or
fraud, or has been obtained from the maker or acceptor thereof by
means of an offence or fraud, or for unlawful consideration, the
burthen of proving that the holder is a holder in due course lies
upon him.
5. Further, Section 139 of the Act reads as under:-
139. Presumption in favour of holder.—
It shall be presumed, unless the contrary is proved, that the
holder of a cheque received the cheque of the nature referred to
in section 138 for the discharge, in whole or in part, of any debt
or other liability.
6. In Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities
Ltd. and Others (2000) 2 SCC 745 , Hon’ble Apex Court noticed the
ingredients of the offence under Section 138 of NI Act as under:-:
“(i) a person must have drawn a cheque on an account
maintained by him in a bank for payment of a certain
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CRM-M-52595-2022 (O&M)
amount of money to another person from out of that
account for the discharge of any debt or other liability;
(ii) that cheque has been presented to the bank within a
period of six months from the date on which it is drawn
or within the period of its validity, whichever is earlier;
(iii) that cheque is returned by the bank unpaid, either
because the amount of money standing to the credit of
the account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that
account by an agreement made with the bank;
(iv) the payee or the holder in due course of the
cheque makes a demand for the payment of the said
amount of money by giving a notice in writing, to the
drawer of the cheque, within 15 days of the receipt of
information by him from the bank regarding the return of
the cheque as unpaid;
(v) the drawer of such cheque fails to make payment of
the said amount of money to the payee or the holder in
due course of the cheque within 15 days of the receipt of
the said notice.”
7 . Annexure P-1 is the copy of complaint under Section 138
Negotiable Instruments Act, 1881 filed by respondent against the petitioner.
Copy of the affidavit of respondent tendered in preliminary evidence is also
on record. From the copy of complaint and affidavit, it prima facie transpires
that in discharge of her legal, lawful liability, petitioner issued cheque No.
₹
286450 dated 21.02.2019 (Ex. C-1) amounting to 11,00,000/- of Canara
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CRM-M-52595-2022 (O&M)
Bank, Branch Kurali, SAS Nagar Mohali. The cheque was presented for
clearance by the respondent/complainant to its banker i.e. Punjab National
Bank and was dishonoured with the remarks “funds insufficient”. The
banker returned the cheque unpaid with memo dated 15.03.2019 (Ex. C-2).
On assurance of accused, respondent/complainant again presented the
cheque to his banker, which was returned unpaid with the remarks “fund
insufficient” vide memo dated 17.05.2019 (Ex. C-3). Legal notice dated
27.05.2019 Ex. C-4 was served upon the petitioner through registered post.
When petitioner failed to make payment of the cheque, the complaint was
instituted.
8. On the basis of the un-rebutted evidence led by complainant at
preliminary stage, learned trial Court was of the view that there were
sufficient reasons to summon the accused-petitioner under Section 138
Negotiable Instruments Act, 1881 and this Court has no reason to hold
otherwise. All pleas raised by the petitioner regarding theft of the cheque,
₹
forgery thereof by the respondent and the demand draft of 11,00,000/-
never having been encashed by her is her defence which she would be
required to prove during trial, at the appropriate stage, by leading evidence.
₹
Her claim that she did not receive sum of 11,00,000/- from the respondent
by encashing the demand draft cannot be accepted at this stage, in view of
the presumption under Section 139 Negotiable Instruments Act, 1881 that
the cheque was issued in discharge of debt or liability. Since, petitioner
claims that there was no liability, the onus would be on her to prove the said
plea during trial of the case.
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CRM-M-52595-2022 (O&M)
9. Following observations made by Hon’ble Supreme Court in
M.M.T.C. Ltd. and Another Vs. Medchl Chemicals and Pharma (P) Ltd.
and Another (2002) 1 SCC 234, would be relevant in this context:
“ There is therefore no requirement that the Complainant must
specifically allege in the complaint that there was a subsisting
liability. The burden of proving that there was no existing debt
or liability was on the respondents. This they have to discharge
in the trial. At this stage, merely on basis of averments in the
Petitions filed by them the High Court could not have
concluded that there was no existing debt or liability.”
(emphasis supplied)
10. The summoning order is not liable to be quashed for the reason
that petitioner is of advanced age and could not have taken money for
sending respondent abroad. When the accused moves to a Court for
quashing of a summoning order, even before the trial has commenced, the
Court should not prematurely stifle the prosecution, by ignoring the legal
presumptions in favour of the complainant/respondent. Whenever disputed
questions of facts are involved as in the present case, they are best left for
determination by the trial Court. This Court in the exercise of inherent
jurisdiction under Section 482 Cr.P.C. cannot usurp the jurisdiction of the
trial Court. Following observations in Rajeshbhai Muljibhai Patel v. State
of Gujarat (2020) 3 SCC 794 would be relevant:
“22. ……… When disputed questions of facts are involved
which need to be adjudicated after the parties adduce evidence,
the complaint under section 138 of the NI Act ought not to have
been quashed by the High Court by taking recourse to section
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CRM-M-52595-2022 (O&M)
482 CrPC, 1973. Though, the Court has the power to quash the
criminal complaint filed under section 138 of the NI Act on the
legal issues like limitation. etc. criminal complaint filed under
section 138 of the NI Act against Yogeshbhai ought not to have
been quashed merely on the ground that there are inter se
disputes between Appellant 3 and Respondent 2. Without
keeping in view the statutory presumption raised under section
139 of the NI Act, the High Court, in our view, committed a
serious error in quashing the criminal complaint in CC No. 367
of 2016 filed under section 138 of the NI Act."
11. Considering the statutory presumption under Section 118 and 139
Negotiable Instruments Act, 1881, the summoning order cannot be quashed
on the ground of advanced age of the petitioner and her plea that the cheques
were stolen from her house and forged. There is no merit in the petition,
which stands dismissed.
12. Nothing observed hereinabove, shall be construed as an opinion
on merits of the case.
13. Pending CRM(s), if any, also stand disposed of.

(SHALINI SINGH NAGPAL)
11.11.2026 JUDGE
Ajay Goswami
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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