JUDGMENT :

Heard Ms. B. Choudhury, learned counsel for the petitioner. Also heard Mr. B. Sarma, learned Additional Public Prosecutor for the State/respondent No.1 and Mr. Z. Alam, learned counsel for the respondent No.2.

2. The petitioner has filed an application under Section 482 Cr.P.C. r/w Article 227 of the Constitution of India seeking quashment of the complaint case No. 2564/2016 pending in the Court of learned JMFC, Kamrup(M), Guwahati against the order dated 25.04.2017, whereby the learned Magistrate took cognizance of the offence punishable under Section 138 of Negotiable Instrument Act (hereinafter for brevity as N.I. Act.) and issued summons to the present petitioner as accused in the said complaint case.

3. The allegation against the accused/petitioner is that he had borrowed Rs.49 lakh from the complainant on the pretext of his urgent necessity and the complainant due to long standing relationship handed over the said amount to the petitioner by executing a deed of agreement dated 29/02/2016. In discharge of the lawful debt, the accused/petitioner issued two cheques bearing Nos. 345183 and 194364 dated 07.07.2016 drawan on Vijaya Bank and HDFC Bank, Fancy Bazar Branch for an amount of Rs.45,50,000/-and Rs.3,50,000/-respectively in favour of the complainant/respondent No.2. The complainant deposited the said cheques in the account of his bank i.e. Nagarik Samabay Bank Ltd. Ulubari Branch, Guwahati on 07.07.2016 but unfortunately, both the cheques were returned on the ground of “account closed.”

4. On receipt of notice regarding dishonor of the said cheques, the complainant through his advocate sent a written notice by registered post with AD intimating to the petitioner regarding the dishonor of the cheques. Though the notice has been received by the accused/petitioner but the cheque amount had not been paid by the petitioner to the respondent No.2/claimant. Finding no other alternative, the claimant/respondent No.2 has filed a complaint case vide C.R. Case No.2564/2016 before the Chief Judicial Magistrate, Kamrup(M) against the present petitioner under Section 138 N.I. Act. On the basis of the complaint filed by the respondent No.2/complainant, the learned Magistrate took cognizance of the offence and issued notice to the accused/petitioner for appearance before the court. Hence, this petition for quashing of the complaint case vide C.R. Case No. 2564/2016.

5. The case of the accused/petitioner is that the respondent No.2 has been known to him for the last fifteen years or so as he used to work as LICI agent and in his capacity as an agent, the respondent No.2 used to be entrusted all the insurance related works as well as other financial works by the petitioner. In fact, the trust that was reposed on the respondent No. 2 by the petitioner had gone to such an extent that almost every month, as and when the petitioner had to pay the LICI premiums, he used to hand over blank cheques without even putting the date on it to the respondent No.2, so as to enable him to pay the LICI premiums, as and when the need arises.

6. Ms. B. Choudhury, learned counsel for the petitioner has submitted that the cheques had not been issued to the respondent No.2/claimant in discharge of any debt or liability as the petitioner way back in the year 2016 had intimated his bank with regard to the loss of cheques in question and the bank has issued a certificate with regard to the loss of the cheques.

7. It is also submitted by the learned counsel for the petitioner that no demand with regard to the amount in view of the dishonored cheques was ever made by the petitioner. It is also alleged that the complainant has filed a vague complaint as he has no where specified as to when the amount was paid and what was the manner in which the said amount was paid.

8. Per contra, Mr. Z. Alam, learned counsel for the respondent No. 2/complainant has submitted that as per the mandate of Section 138 of N.I. Act, there is presumption that the cheque has been dra