The legal presumption under Section 139 of the NI Act favors the complainant, and factual disputes must be resolved at trial, not pre-trial.

Judgment

Mr. Harpreet Singh Brar, J.

The petitioner has approached this Court praying for setting aside the impugned summoning order dated 11.04.2019 (Annexure P-4) passed by the Court of learned Judicial Magistrate 1st Class, Abohar along with complaint bearing No.NACT-204 of 2019 dated 17.02.2019 titled as Amardeep Singh Vs. Balkour Singh.

2. In brief the facts are that respondent No.2-complainant had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the NI Act) against the petitioner alleging therein that the petitioner had borrowed an amount of Rs.9 lakhs from respondent No.2-complainant with a promise to repay the same. When respondent No.2-complainant demanded the said amount, the petitioner issued a cheque bearing No.021925 dated 17.12.2018 for an amount of Rs.9 lakhs drawn on State Bank of Bikaner and Jaipur (now merged in State Bank of India, Branch Bhagat Singh Chowk, Abohar) in favour of the respondent No.2-complainant with an assurance that the same will be enchased on presentation. However, on presentation of the said cheque by respondent No.2-complainant in his bank account, the same was dishonoured vide return memo dated 18.12.2018 with remarks ‘account closed’. The respondent No.2 complainant had sent legal notice dated 27.12.2018 to the petitioner asking him to liquidate the cheque amount but he did not make the payment within the stipulated period prescribed in the notice and thus, the complaint in question was filed.

3. The respondent No.2-complainant led the preliminary evidence and the learned trial Court being convinced that a prima facie case was made out against the petitioner under Section 138 of the NI Act, summoned the petitioner vide impugned order dated 11.04.2019.

4. Learned counsel for the petitioner submitted that the petitioner used to sell his crops to respondent No.3 for which he kept some cheques of the petitioner with him for withdrawal of the cash in lieu of sale of crops of other farmers, which respondent No.3 used to sell in the name of the petitioner. Later on, the petitioner stopped his dealings with respondent No.3 and being disgruntled by the said fact, respondent No.3 in connivance with respondent No.2 misused the cheque kept by him and presented the same in the bank account of respondent No.2 for encashment. It is further contended that the said respondents procured an illegal return memo dated 18.12.2018 with remarks ‘account closed’.

5. Learned counsel for the petitioner argued that the complaint filed by respondent No.2-complainant is not maintainable as the cheque in question was not a valid tender and therefore, impugned order dated 11.04.2019 summoning the petitioner is liable to be set aside. To corroborate his contention, counsel for the petitioner refers to guidelines dated 02.05.2018 issued by the Reserve Bank of India that cheques issued by the State Bank of Bikaner & Jaipur were valid as negotiable instrument upto 30.06.2018 and beyond the said date, cheque issued by the said Bank would not be entertained by any other bank. Further reliance was placed upon the information obtained under the Right to Information Act, 2005 wherein it was replied that earlier cheques issued by the State Bank of Bikaner and Jaipur after its merger with the State Bank of India were not entertained by any other bank in the month of December, 2018. It is also argued that since cheques of the State Bank of Bikaner and Jaipur were not valid tender after 30.06.2018 on its merger with State Bank of India, the return memo dated 18.12.2018 obtained by respondent No.2 was forged and fabricated.

6. Per contra, learned counsel appearing for respondents No.2 and 3 argued that the trial Court based on the preliminary evidence given by the complainant came to the conclusion that a prima facie case is made out against the petitioner and therefore, he was rightly summoned and the impugned order does not warrant any interference.

7. I have heard learned counsel f