The main legal point established in the judgment is the presumption in favor of the holder of the cheque under Section 139 of the Negotiable Instruments Act, and the curable nature of certain procedural defects under Section 465 of the Code of Criminal Procedure.

JUDGMENT :

Through Virtual Mode

1. By invoking inherent powers vested in this Court in terms of Section 482 of the Code of Criminal Procedure, the petitioner seeks to quash order dated 20.08.2019 passed by the learned Judicial Magistrate 1st Class, Bhaderwah [“the Trial Court”] in a complaint under Section 138 of Negotiable Instruments Act, 1881 [“the Act”] filed by the respondent against the petitioner, whereby the Trial Court, after recording preliminary statement of the complainant and his witnesses, has issued process to secure presence of the petitioner for facing the trial.

2. Briefly stated, the facts leading to the filing of instant petition are that the respondent has filed a complaint under Section 138 of the Act against the petitioner on the allegation that the petitioner had issued in his favour a cheque bearing No. 005919 dated 17.07.2019 for an amount of Rs. 25,00,000/- drawn on petitioner's account maintained with Ellaquai Dehati Bank, Branch Bhaderwah. The respondent deposited the said cheque for encashment in the bank on 17.07.2019 but the same was returned with the memo that account of the petitioner did not have sufficient funds for its encashment. The cheque was returned with the aforesaid memo by the bank on 17.07.2019. As is claimed, the respondent served a demand notice on the petitioner on 25.07.2019 requesting the petitioner to make the payment of the cheque amount within fifteen days from the date of receipt of the notice. The petitioner did not make the payment and, therefore, a complaint under Section 138 of the Act was filed before the Trial Court.

3. The complaint was entertained and taken cognizance of by the Trial Court, and preliminary statement of the complainant and his witnesses in support of the complaint was recorded. The Trial Court after considering the complaint and documents appended therewith as also the preliminary statement of the complainant and his witness, arrived at the satisfaction that there were sufficient grounds to proceed further in the matter. Accordingly, vide order impugned dated 20.08.2019, process was issued against the petitioner. It is this order of issuance of process, which is called in question by the petitioner in this petition primarily on two grounds:-

i) that the complaint is not maintainable for the reason that in the complaint the respondent has not averred that he has received the cheque in discharge of some legally enforceable debt or liability; and

ii) that the complaint does not contain the list of witnesses.

It is, however, not the case of the petitioner that the complaint otherwise does not disclose commission of offence under Section 138 of the Act and, therefore, should not have been entertained by the Trial Court.

4. Having heard learned counsel for the parties and perused the record, I am of the view that the impugned order of issuance of process to the petitioner does not suffer from any illegality or infirmity as would call for any interference by this Court in exercise of its inherent jurisdiction under Section 482 Cr.P.C.

5. It true that in the complaint the respondent has not disclosed the legally enforceable debt or liability in discharge whereof he has received the cheque from the petitioner. That, however, cannot vitiate the complaint for the simple reason that under Section 139 of the Act, there is presumption that holder of the cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability unless of course the contrary is proved.

6. In view of the provision of Section 139 of the Act, it is not available to the petitioner to argue that in the absence of specific mention in the complaint that the cheque was received by the respondent in the discharge of any debt or other liability, the complaint is not maintainable.

7. The view of mine finds support from the judgment of Hon'ble Supreme Court in Rohitbhai Jivan Lal Patel v. State of Gujarat, (2019) 18 SCC 106. What is held by