IMPORTANT POINT
The court affirmed that a complaint under Section 138 NI Act does not require exhaustive details of the debt, as the presumption of liability under Section 139 suffices for taking cognizance.

JUDGMENT :

(Arun Dev Choudhury, J.)

1. Heard Mr. G. Baishya, learned counsel for the petitioners. Also heard Mr. A. Bhattacharya, learned counsel for the respondent.

2. The present application is filed under Section 482 read with Section 397 and 401 of the Code of Criminal Procedure, 1973 assailing an order dated 16.06.2016 passed by the learned Judicial Magistrate First Class, Kamrup (M), Guwahati, whereby cognizance of offence under Section 138 of the Negotiable Instruments Act, 1881 was taken in Complaint Case No. 208C/2016. The further challenge is an order dated 30.03.2017 passed by the learned trial court, whereby a petition registered as Petition No. 9456 dated 30.03.2017 preferred by the accused petitioner seeking dismissal of the complaint case on the ground of pendency of a civil suit filed by the accused was rejected. Yet another prayer made in the petition is for quashment of the entire proceeding.

3. Mr. G Baishya, learned counsel for the petitioner submits that the actual amount of legally enforceable due has not been disclosed, though the complainant had made a vague statement that cheques were issued against legally enforceable debt. Therefore, in absence of such details, no case under Section 138 of NI Act, is made out and accordingly, the proceeding be set aside and quashed.

4. Referring to the para 8 of the complaint, Mr. Baishya, learned counsel for the petitioner submits that though it is an admitted position that two machines were sold, however, the complainant have failed to make a mention what was the total sale consideration of the two stone crusher machines and what is the amount that had already been paid and what is the actual legal due. In absence of such disclosure, it cannot be said that a case under Section 138 of N.I Act is made out.

5. According to him, this case do not relate to single cheque rather the cheques involves are 11 numbers of cheques. Therefore, it is not discernible which cheque is against what liability.

6. Referring to initial deposition filed through an affidavit in opposition, Mr. Baishya, argues that from the initial deposition also it is not disclosed what is the actual amount due and whether any part of the alleged due was paid and what is the remaining amount, though in the initial deposition it is also admitted that there were two machines, however, nothing is discernible, against which machine the amount was due.

7. Referring to the pleaders notice issued by the complainant, Mr. Baishya further argues that such notice also lacks the aforesaid particular, which is necessary to proceed under Section 138 of the NI Act.

8. Referring Section 139 of NI Act, Mr. Baishya, learned counsel for the petitioner argues that Section 139 of NI Act merely raises a presumption in regard of law, however, it is incumbent upon the complainant to lay the foundation that there is a legally enforceable debt which is not available in the present case and therefore, the learned Magistrate ought not to have issued the process. In this regard, Mr. Baishya, learned counsel places reliance on the decision of the Hon’ble Apex Court in the case of Krishna Janardhan Bhat –Vs- Dattatraya G. Hegde reported in 2008 4 SCC 54.

9. Per contra, Mr. Bhattacharya, learned counsel for the respondent referring to the paragraph 4 of the complaint submits that paragraph 4 clearly discloses the factum of purchase of mobile stone crusher equipment by the petitioner from the complainant.

10. Referring to paragraph 5, Mr. Bhattacharya, learned counsel submits that it is clearly stated in the said paragraph that in discharge of legally enforceable debt, the accused No. 2 in the capacity of the partner of the accused No. 1 firm issued 11 numbers of cheques in favour of the complainant. He further contends that cheques numbers were also mentioned and the amounts of the 9 cheques were also mentioned and therefore, it cannot be said that the complaint has not disclosed the amount of legally enforceable debt. Referring to paragraph 6,