Point of Law: There is a presumption under Section 139 of the N.I.Act that there exists a legally enforceable debt or liability.

JUDGMENT :

1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State.

2. The brief facts of this case are as under:-

2.1 That the complainant and the original accused-applicant is known to each other as they are doing business of Tobacco. That, tobacco worth Rs. 5,95,000/- was sold to the accused. That, according to the complaint, Rs.1,30,000/- was paid and cheque No. 000004 of Rs.60,000/- of HDFC Bank Nadiad Branch dated 24.4.2017 was given by the accused towards remaining payment. That, as per complaint, the said cheque was deposited by the complainant in Gujarat Rural Bank, Nandisar Branch on 7.7.2017, which was returned on 10.7.2017 with the endorsement of “insufficient fund”. That, a notice dated 2.8.2017 was issued by the complainant to the accused-applicant which is served to the accused-applicant on 5.8.2017, even though accused-applicant neither replied nor complied with as claimed under the notice Hence, the complaint was filed. That, initially the complaint was registered as Criminal Inquiry No. 182 of 2017 vide order dated 8.9.2017 and it was kept for inquiry and the complainant was directed to remain present on 15.9.2017. That, the complainant has produced a list of documents along with the complaint and the examination-in- chief of the complainant on affidavit was also presented afterwards. That, by order dated 15.9.2017, below Exh. 1, complaint was ordered to be registered and process was directed to be issued u/s. 204 of the Code of Criminal Procedure making returnable on 9.10.2017. That, the said complaint is being registered as Criminal Case No. 2208 of 2017.

3. Being aggrieved by and dissatisfied with the order of issuance of process in the said complaint, the applicant has preferred this Criminal Misc. Application to quash and set aside the impugned complaint along with the order of issuance of process against him and all subsequent proceedings in connection thereof.

4. Learned advocate for the applicant submits that the cheque in question was misused by the respondent No.2 to grab more money from the applicant for which the applicant was not liable to pay the same. It is further submitted that the demanded amount has already been paid prior to presentation of the cheque. Therefore, no offence u/s. 138 of the Negotiable Instruction Act can be said to have been committed by the present applicant. Hence, the issuance of process for the same deserves to be quashed and set aside Referring documentary list produced on record by the original complainant before the trial, it is submitted that reply of the notice issued by the complainant was given on 22nd August, 2017 at Sr. No.6. However, the complainant, in his chief-examination before the trial Court, has denied of the reply given by the present applicant. That, the original complainant is a lier and suppressed the correct facts before the Court below. That, he has never denied of accepting Rs.60,000/- under his signature, as per receipt issued by him produced at annexure “D”, therefore, he is silent on his part. It is further submitted that there is no legal due payable to the respondent No.2 by the applicant. It is further submitted that cheque was issued only for security purpose by the applicant. Therefore, he has requested that there is a clear misuse of process by filing the complaint u/s. 138 of N.I.Act and abuse of process of law. Hence, it was requested by the learned Advocate for the petitioner to quash and set aside the Criminal Case No. 2208 of 2017 pending before the learned 3rd Additional Civil Judge and Judicial Magistrate First Class, Godhara.

5. From the other side, Mr.Pradip Patel, learned advocate appearing for the respondent No.2 has objected the submissions made by learned advocate for the applicant and submitted that paying Rs.60,000/- by the applicant to respondent No.2 or issuing any receipt under his signature can be proved or disproved at the relevant point of time while recording th