IMPORTANT POINT
Where cheque has been drawn and issued statutory presumption is that it was issued for valuable consideration.

Rajiv Shakdhar, J. —Leave granted.

2. This appeal is directed against the judgment of the learned Metropolitan Magistrate (in short Magistrate dated 20.10.2005 where by the respondent/accused has been acquitted.

3. The case set up by the appellant/complainant before the trial court is as follows:

4. The appellant/complainant is a proprietor of a concern by the name of M/s Gaba Trading Company. The appellant/complainant is in the business of ‘cloth’. In the course of his business, the appellant/complainant sold a certain quantity of cloth to the respondent/accused vide bill No.7 dated 09.05.2001. The said bill was for a sum of Rs 65,000. In satisfaction of the said debt, i.e., the aforementioned bill, the respondent/ accused issued two cheques bearing No.658024, dated 12.05.2001, drawn on UCO Bank, Dr. Mukherjee Nagar, Delhi, in the sum of Rs.15,000, and cheque bearing No. 599135, dated 15.10.2001, also drawn on UCO Bank, Dr. Mukherjee Nagar, Delhi, in the sum of Rs 50,000. The said cheques were deposited by the appellant/complainant with his banker on 15.10.2001. However, to his surprise, both the cheques were dishonoured, and consequently, returned by his banker, along with a cheque return memo. This propelled the appellant/complainant to trigger the proceedings under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘N.I. Act’). Consequently, a statutory notice demanding from the respondent/accused, the payment in respect of the aforementioned cheques was issued on 22.10.2001, by the appellant/complainant. The acknowledgment card was received by the appellant/complainant, on 27.10.2001.

5. On failure of the respondent/accused to pay the money within a period of 15 days of service of the legal notice issued by the appellant/complainant, an offence under the provisions of Section 138 of the N.I. Act, stood committed. Resultantly, a criminal complaint was lodged.

6. At this juncture, it would be perhaps pertinent to note, that the complaint was lodged in the Court of the learned Magistrate on 1.12.2001, whereupon, it was registered. By an order dated 23.3.2002, summons in this case were issued by the trial court. On 18.7.2002, the respondent/accused along with his counsel entered appearance. On an application moved by the accused, he was admitted to bail on his furnishing a bond in the sum of Rs 65,000 and a surety of a like amount. The matter was posted for 31.7.2002. On the said date, the following order was passed:

“Present: —Counsel with complainant.

Accused with counsel.

Compromise not effected. Counsel for accused requests for adjournment. Put up 5.8.2002 for compromise or arguments on notice u/s 251 Cr.P.C. L/O given.

Sd/-

ASJ

31.7.2002.”

7. Thereafter the matter was posted for 5.8.2002 when the accused stated before the Court that he was willing to pay Rs.65,000 to which the appellant/complainant gave his consent. For effectuating a compromise, the matter was posted for hearing on 5.9.2002. The proceedings of 5.9.2002 read as follows:

“Present: Learned counsel for the parties along with the parties.

Accused has dragged (s.i.c. retracted) out from his statement made in the Court on 5.8.2002. Its effect will be seen at the proper time.

On the contrary, he has moved an application for recalling of summoning order. Copy given to the complainant.

Arguments on 12.09.2002.

Sd/-

ASJ

31.7.2002”

8. It transpires that on 5.9.2002, when the matter came up before the trial court, the accused resiled from the statement made on 5.8.2002, and as a matter of fact, moved an application for recall of the summoning order. The contents of the application have a bearing on the case, which has been discussed by me in the latter part of my judgment. To cut the narrative with respect to proceedings in Court short, on 28.9.2002, the trial court heard the submissions of the counsel for the respondent/accused on his application for recalling the summoning order. The court came to the conclusion