The court reaffirmed that the presumption of liability under Section 139 of the Negotiable Instruments Act must be established through evidence at trial, not pre-trial.

JUDGMENT :

SUNIL DUTTA MISHRA,  J.

1. Heard learned counsel for the petitioner as well as the learned A.P.P. for the State.

2. The present application has been filed on behalf of the petitioner for quashing the order dated 14.11.2014 passed by the learned Judicial Magistrate 1^st Class, Vaishali at Hajipur (hereinafter referred to as ‘Magistrate’) in connection with Complaint Case No. C1-2065 of 2013 wherein the learned Trial Court took cognizance of the offence under Section 138 of the Negotiable Instruments Act , 1881 (hereinafter referred to as ‘N.I. Act’) against the petitioner and accordingly, directed to issue process.

3. The fact of the case, in brief, is that the complaint was instituted by Opposite Party No.2 alleging that on 11.02.2013 the petitioner approached him for a loan of Rs.1,00,000/-, out of which a sum of Rs.95,000/- was allegedly advanced in the presence of witnesses, and in discharge of the said liability, a cheque dated 11.03.2013 for Rs.95,000/- was issued by the petitioner. It is further alleged that upon presentation, the cheque was dishonoured due to insufficiency of funds and, thereafter, a legal notice dated 22.05.2013 was issued to the petitioner, who failed to make payment within the statutory period. The complainant has been examined on oath and two inquiry witnesses have also been examined. Learned Magistrate on perusal of record found sufficient materials available on record to proceed with the case and recorded that a prima facie case is made out against the petitioner and directed to issue summons upon him vide impugned order dated 14.11.2014. Aggrieved by the impugned order of cognizance, the petitioner has approached this Court by filing the present petition.

4. Learned counsel for the petitioner has assailed the impugned order primarily on the ground that the mandatory requirements of Section 138 of the N.I. Act were not fulfilled prior to institution of the complaint. It is submitted that no statutory legal notice was ever served upon the petitioner and the same was not filed along with the complaint petition. Neither the complaint petition nor the order taking cognizance reflect compliance with the requirement of issuance and service of notice. It is further submitted that the learned Magistrate has taken cognizance in a mechanical manner without proper application of judicial mind to the materials on record. Moreover, it is submitted that there existed a joint business relationship between the petitioner and Opposite Party No.2 and certain cheques of the petitioner were lying with the Opposite Party No.2, which have been misused to give a criminal colour to what is essentially a civil dispute. It is further submitted that the petitioner never received any amount from the Opposite Party No.2 and never issued the cheque in question towards discharge of any legally enforceable debt or liability. Therefore, it is lastly submitted that continuation of the criminal proceeding would amount to abuse of the process of the Court and the impugned order is liable to be quashed.

5. Per contra, learned A.P.P. for the State submitted that the impugned order taking cognizance of the offence under Section 138 of the N.I. Act does not suffer from any apparent illegality warranting interference under Section 482 of the Code of Criminal Procedure . It is submitted that at the stage of taking cognizance, the learned Magistrate is only required to prima facie satisfy himself regarding the existence of ingredients of the alleged offence and a detailed appreciation of evidence is neither required nor permissible. Learned A.P.P. further submitted that the defence raised by the petitioner relates to disputed questions of fact, which can be adjudicated only during trial. It is also submitted that no case is made out for exercise of inherent jurisdiction of this Court to quash the criminal proceeding at the thre