The burden to prove that a cheque was not issued in discharge of any debt or liability lies on the issuer during the trial, and the presumption in favor of the holder of the cheque can be rebutted by the issuer. The Magistrate's duty is to consider the materials available before him and record his prima facie satisfaction whether the alleged offense is constituted or not.

JUDGMENT :

1. Heard Sri Raj Kumar Kesari, learned counsel for the applicant, Sri Abhyuday Mehrotra, Advocate holding brief of Sri Birendra Kumar Mishra, learned counsel for the opposite party no.2 and Sri Sandeep Choudhary, learned A.G.A. for the State.

2. The instant application u/s 482 Cr.P.C. (hereinafter referred as 'the Code') has been filed seeking quashing of the summoning order dated 24.09.2015 in complaint case no. 5972 of 2015 (Motor Oil Lubricants Pvt. Ltd. Vs Neeraj Jain) u/S 138 of Negotiable Instrument Act (hereinafter referred as ''the Act'), passed by Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No. 4, Agra.

3. Learned counsel for the applicant submits that in the instant case, the impugned cheque was issued by the applicant herein as a security for the commercial transactions between the parties in the year, 2013, which has been misused by the opposite party no.2 and the instant complaint case has been filed by presenting the said cheque by filling up the amount as per his own convenience. Therefore, learned counsel applicant has submitted that on the basis of the said cheque, which was issued as a security for the commercial transactions between the parties, no offence u/S 138 of the Act, can be said to have been made out. In support of his arguments, learned counsel for the applicant has relied upon the judgement of the Co-ordinate Bench of this Court in Vijay Kumar Upadhyay vs. State of U.P. & Anr. : 2013 (1) ALL LJ 577 and submitted that in that case also, the cheque was given as a security amount, which was not covered u/S 138 of the Act. Therefore, the Co-ordinate Bench of this Court has quashed the entire proceedings of the said complaint case u/S 138 of the Act, holding that the security cheques are not covered u/S 138 of the Act. Therefore, he has prayed for similar order, quashing the entire proceedings of the said complaint case against the applicant herein.

4. Per contra, learned counsel for the opposite party no.2 has submitted that in the instant case, challenge has been made by the applicant only to the summoning order dated 24.09.2015 and while taking the cognizance in the matter, the learned Magistrate is required to consider the materials available before him at the time of the summoning the accused persons for the offences u/S 138 of the Act and the Magistrate is required to satisfy himself whether from the materials available before him, an offence u/s 138 of the Act, prima facie constituted or not. After recording his satisfaction, it will be the duty of the learned Magistrate to issue summons against the accused persons so that he may contest the case in accordance with law.

5. In the instant case, the complaint filed by the opposite party no.2, categorically makes out a case that the opposite party no.2 had sold the oil to the applicant/complainant for which an amount of Rs. 48,40,783/-were due to be paid by the applicant to the opposite party no.2 and out of the said amount, the applicant had paid the sum of Rs. 36,10,821/-including the Cash Discount, Credit Note etc., and for the remaining amount, in discharge of the legal debt, the applicant has issued a cheque of Rs. 12,29,962/-on 16.06.2015, in favour of the opposite party no.2, which was presented for encashment by the opposite party no.2 in his bank and the same cheque was dishonoured on 20.06.2015 and after the said dishonour of cheque, on 10.07.2015, the legal notice was issued by the opposite party no.2, which was received by the applicant herein on 14.07.2015. Despite that, the applicant herein had failed to make payment of the said cheque amount to the opposite party no.2, within the period of notice. Therefore, after the expiry of 15 days from the receipt of the said notice, the offence u/S 138 of the Act, is constituted and the opposite party no.2 had filed the complaint case within the period of limitation i.e., on 05.08.2015. Therefore, the impugned cheque, the dishonour memo and the legal notice was pla