This application is shown to have been filed under Section 482 read with Sections 397/401 of the Code of Criminal Procedure praying for setting aside the two orders dated 15/11/2013 and 17/1/2014 passed by the learned Judicial Magistrate, 1st Class, Nagaon in CR Case No. 2185/ 2012.

2. By order dated 15/11/2013, an application filed by the petitioner on 9/9/13 was rejected observing that “accused can avail of whatever materials in the form of documents and evidence given by the complainant to prove his case and rest his defence on it.” By the said order, the learned Court observed that before defence of the accused person is heard, ‘opportunity needs to be given to the complainant to present his case’. Thereafter 06/12/2013 was fixed for explaining offence to the accused. Ultimately on 17/01/2014 offence was explained to the accused person and 17/02/2014 was fixed for examination of the prosecution witnesses. These two orders, namely, 15/11/2013 and 17/01/2014 have been challenged by a composite application.

3. Before deciding this Criminal Petition, it is necessary to narrate necessary facts of the case sans unnecessary details. The opposite party No.2 herein as complainant lodged a complaint before the learned Chief Judicial Magistrate Nagaon on 21/07/2012 under Sections 138/142 of the Negotiable Instrument Act, 1988 (as amended). In the complainant it was alleged that present petitioner issued cheque No.546334 of Rs. 3,36,000/- on Indian Bank Nagaon branch against his account No.507103998. The cheque on being presented on 11/06/2012 to Axis Bank Ltd Nagaon Branch, was dishonoured for insufficiency of funds. The same was communicated to the complainant by cheque return memo of Indian Bank on 12/06/2012. Faced with such situation, the complainant made a demand to the accused person under registered post through his lawyer on 18/06/2012 which was received by the accused/petitioner on 19/06/2012. But he failed to make the payment. Under such circumstances and on fulfillment of all conditions precedent laid down under section 138/142 of the Negotiable Instrument Act, 1988 (as amended) (hereinafter referred to as the Act), the complainant instituted the case and prayed for appropriate action under the aforesaid provisions of the Act. The case was registered as CR Case No. 2746/2012. The complainant also filed an affidavit in that case being his initial deposition and thereupon, the learned Court took cognizance of offence under Section 138 of the Act and issued summons to the accused/petitioner.

4. A perusal of the order sheet shows that after receipt of summons, the accused took time on 21/01/2013. On 01/03/2013 he filed an application for dispensing with his personal appearance. This application was allowed on the following day and 19/03/2013 was fixed for appearance of the accused. While the accused filed application before the learned Magistrate on 19/03/2013 through his engaged counsel praying for adjournment, he filed an application under Section 482 of the Code of Criminal Procedure before this High Court vide Criminal Petition No. 182/2013. This Court by order dated 20/03/2013 issued notice of motion and stayed all further proceedings of the complaint case i.e. CR Case No. 2746/ 2012. However, subsequently on 30/07/2013, the learned counsel for the accused petitioner made a submission before this Court that he would like to file application for rebutting presumption under Section 139 of the Act before the trial Court and on his such submission, the Criminal Petition No. 182/13 praying for quashment of the complaint was closed giving liberty to the accused petitioner to file petition for appropriate relief before the trial Court.

5. Thereafter, on 02/09/2013 the accused petitioner filed an application before the learned Magistrate purportedly under Section 118(A)/139 of the Act stating that Section 139 of the Act merely raises a presumption in regard to issuance of cheque for discharging of any deb