JUDGMENT :

(Kuldeep Mathur, J.) :—

The instant criminal miscellaneous petition has been filed by the petitioner under Section 482 Cr. P.C. challenging the order dated 29.8.2022 passed by learned Additional Sessions Judge No. 2, Barmer in Criminal Revision No. 24/2017 (47/2016) and the order dated 20.11.2015 passed by learned Additional Chief Judicial Magistrate, Barmer in Criminal Case No. 1627/2015 whereby cognizance for offence under Section 138 of the Negotiable Instrument Act was taken against the petitioner.

2. Learned counsel for the petitioner submitted that respondent No. 2 filed a complaint against the petitioner under the provisions of Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act of 1881’) stating inter alia that three cheques bearing Nos. 822095, 822098 and 822099 dated 28.10.2014 for an amount of Rs. 10,00,00 each, totalling to Rs. 30,00,000 were handed over by the petitioner to respondent No. 2. The complainant (respondent No. 2) presented the cheques on 06.11.2014, 07.11.2014 and 08.11.2014 to the bank for payment. However, the same were dishonoured by the bank and returned on 07.11.2014, 08.11.2014 and 10.11.2014 with an endorsement ‘fund insufficient’. The complainant- respondent No. 2 thereupon, served a notice dated 06.12.2014 as per the provisions of the Act of 1881. However, no reply thereof was given by the petitioner. Thereafter, the complainant- respondent No. 2 filed a complaint under Section 138 of the Act of 1881 which led to the summons and issue of process against the petitioner and ultimately, vide order dated 20.11.2015, learned Additional Civil Judge and Judicial Magistrate, Barmer had taken cognizance against the petitioner under Section 138 of the Act of 1881.

3. As noticed above, the revision petition filed against order dated 20.11.2015 passed by learned Additional Civil Judge and Judicial Magistrate, Barmer was dismissed by the revisional court i.e. learned Additional Sessions Judge No. 2, Barmer vide order dated 29.8.2022.

4. From the perusal of the miscellaneous petition preferred on behalf of the petitioner, this Court finds that the basic ground of challenge to the orders impugned is that the cheques in question were not issued in discharge of a ‘legally recoverable debt’.

5. The defence taken by the petitioner before learned court of learned Additional Sessions Judge No. 2, Barmer and revisional court i.e. learned Additional Sessions Judge No. 2, Barmer was that on 18.10.2014, while going to Bandra Road from Uttarlai (Barmer), the petitioner's cheque book of IDBI Bank A/C No. 10803315006 bearing signatures of the petitioner was mistakenly dropped by him on the road. An information was lodged by him in this regard at PS Barmer Rural and payment was also stopped. The lost cheque book was then found by the complainant who by misusing the cheque leaves, presented the same to the concerned bank.

6. Learned counsel submitted that in view of aforesaid, the offence against the petitioner under the provisions of the Act of 1881 is not made out and therefore, the miscellaneous petition may be allowed and the impugned orders dated 029.08.2022 and 20.11.2015 may be quashed and set aside.

7. Per contra, learned Public Prosecutor and learned counsel for the complainant vehemently opposed the submissions advanced by counsel for the petitioner and prayed that the criminal miscellaneous petition may be dismissed by this Court.

8. Having gone through the orders impugned and after giving due consideration to the arguments advanced, this Court finds that the legal presumption of cheque having been issued in the discharge of liability is in favour of the complainant-respondent No. 2. The courts below have rightly