Point of Law : In case ingredients for filing complaint under Section 138 of NI Act are in existence, then presumption is there, as provided under law, and to rebut the same, definitely, evidence would be required, which would be possible only in the trial Court.

ORDER :

Petitioner, in present petition filed under Section 482 of the Code of Criminal Procedure (for short ‘Cr.P.C.’), has assailed order dated 5.9.2020, passed by Judicial Magistrate First Class, Court No.5, Shimla, in case No.57-3/2020, titled as Tikmi Devi v. Bhim Singh, whereby learned Magistrate has proceeded against him for commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘NI Act’) and issued summons for his service.

2. It is case of the complainant-respondent that she, on request of accused-petitioner to enable him purchase land at Ner- Chowk Mandi, had paid amounts to him on different dates and for discharge of his liability to return the same, petitioner had issued two cheques dated 25.3.2020 and 20.3.2020, for Rs.3,30,000/- and Rs.4,50,000/- respectively. The said cheques, on presentation by the respondent-complainant for collection, on 25.6.2020, were dishonoured for insufficiency of funds. Thereafter, on 18.7.2020, Legal Demand Notice was issued to the accused-petitioner by the complainant-respondent, through her counsel, requesting him to pay Rs.7,80,000/- within 15 days of receipt of the notice. On failing to pay the amount of cheques, within 15 days of receipt of the Demand Notice, complaint was preferred in the Court.

3. Case of the accused-petitioner is that he was not having any social or any other relation with the complainant-respondent or her family members, but he was an authorized Marketing Agent of Financial Institutions/Banks, on commission basis, for promoting Mutual Funds and Bonds of the Institutions/Banks and in such course he came in contact of respondent and she had invested in Mutual Funds of ICICI Prudential, State Bank of India and SAMRUDDHA Jeevan Foods India Ltd., and from Mutual Funds of ICICI Prudential and State Bank of India, respondent is getting returns ranging from 15% to 18% per annum, however, with respect to amount of Rs.4,00,000/-, invested in the Bonds of SAMRUDDHA Jeevan Foods India Ltd., some problem has arisen as the Company has been restricted from Investment Trading and criminal actions, under law, have also been initiated against the said Company for aforesaid irregularity which are pending in the Courts. In this regard, petitioner has placed on record Newspaper cutting as Annexure P-6.

4. It is further case of the petitioner that during aforesaid business interaction, respondent had taken blank cheques from petitioner, bearing only signatures of the petitioner, as security to ensure that the amount is actually invested, with understanding that the cheques would be torn after issuance of Certificates/Bonds of investment to the respondent. As such, petitioner has claimed that there is no enforceable debt for which cheques, in reference, would have been issued. According to petitioner, he was assured that the cheques had been torn, but he was shocked and astonished on receiving notice/warrant from the Court in the complaint, preferred by the respondent against him, under Section 138 of NI Act. As per petitioner, after service in the said complaint, he had asked the husband of respondent, who is an Advocate, reasons for filing the complaint, whereupon it was informed that as amount invested in SAMRUDDHA Jeevan Foods India Ltd. was under dispute, the respondent had no other option to recover the said amount, except by filing the complaint.

5. Defence of the petitioner is that story in complaint is fabricated and concocted, and in order to frame the petitioner in false case, notice, which was issued by Mr. K.R. Thakur, Advocate, who is husband of respondent, was posted at the wrong address of the petitioner, giving incorrect description of the Post Office, by avoiding to send the same on the present address of the petitioner, who is residing in Shimla, despite having knowledge of the said address. Further that, petitioner as well as respondent and her husband are residing in Shimla, but the notice, as per postal receipt placed on