The impugned order of cognizance under Section 138 of the Negotiable Instruments Act was upheld despite challenges to the existence of a legal debt.

JUDGMENT :

Savitri Ratho, J.

This CRLMC has been filed to set aside the criminal proceeding as well as the order dated 15.05.2024 passed in 1CC Case No. 51 of 2024 by the learned Judicial Magistrate First Class (in short “JMFC”) Soro taking cognizance of the offence under Section 138 of the Negotiable Instruments Act (in short “the NI. Act”) against the accused -petitioner.

CASE OF THE COMPLAINANT

2. The complainant is a service holder. he complainant- opposite party and the accused - petitioner-'s family are known to each other. The accused borrowed money from the complainant on different occasions .When the complainant asked for return of the money, on 16.02.2024, the accused issued a cheque bearing No.-069326 for Rs 17,00,000/- . The complainant presented the cheque for collection in State Bank of India, Soro but the cheque was bounced and was returned unpaid with an endorsement 'funds insufficient', vide cheque return memo dated 21.02.2024. Thereafter on dated 09.03.2024 the complainant sent a legal notice to the accused . He received the above demand notice but did not pay the amount . So the complainant filed the complaint - I.C.C No. 51 of 2024 in the Court of the J.M.F.C, Soro. On receipt of the complaint petition and other relevant documents produced by the complainant, the learned J.M.F.C, Soro on 15.05.2024 took cognizance of the offence under Section 138 of the N.I Act and issued process to the petitioner for his appearance.

IMPUGNED ORDER

3. On 15.05.2024, after the complainant filed the original documents ; after perusal of the complaint, the affidavit of the complainant under Section 145 of the NI Act and other documents, the learned JMFC, Soro found sufficient material to proceed against the petitioner under Section 138 of the N.I. Act, took cognizance of the offence and issued summons to him.

SUBMISSION

4. I have heard Mr. S.P. Dash, learned counsel for the petitioner and Mr. G.P. Jena, learned counsel for the Opposite Party.

5. Mr. Dash, learned counsel for the petitioner submitted that the petitioner does not know the complainant though the complainant claims they are friends and there is no legal debt existing to attract the offence under Section 13 of the NI Act . He has submitted that on 22.09.2023, when the petitioner had been to Bank of India Tungabhadra Branch to withdraw some money, two cheques including the cheque in question in this case got stolen . So he informed the Bank to stop payment and reported the matter to the IIC Soro Police Station and police made a Station Diary Entry . When he received the Advocate's notice of the complainant, he had replied informing him his two cheques had got stolen for which he had informed the police who had made station diary entry . But after receiving the reply, instead of returning the cheque to the petitioner, the complainant filed FIR against him, leading to registration of Soro P.S. Case 224 of 2024, punishable under Sections 420, 422, 468 I.P.C and also filed this complaint making false allegations. But the allegations in the FIR and the complaint case are completely different. He has further submitted that the complainant has not mentioned in the complaint petition or brought to the notice of the learned Magistrate about lodging of FIR against the petitioner . In view of the contents of the written FIR of the complainant in Soro P.S Case 224 of 2024, no legal liability which is one the requirements to constitute the offence under Section 138 NI Act, is available against the petitioner, for which, the impugned order taking cognizance is liable to be quashed. He has submitted that as investigation in Soro P.S. Case No. 224 of 2024 was going on, in view of the provisions of Section 210 of the Cr.P.C ., the learned Magistrate should have stayed the procee