The statutory presumption under Section 139 in favor of the holder of the cheque against the drawer must be rebutted by the accused during the trial and not at the summoning stage.

Alok Singh, J.

In all these petitions, filed under Section 482 Criminal Procedure Code, identical question of facts and law are involved; in all the petitions complainant and accused are the same, therefore, all the petitions are being disposed of by this common judgment.

2. For the sake of brevity facts of Criminal Misc. Application No. 110 of 2013 are being taken for the disposal of the cases.

3. Respondent/complainant preferred complaint in the court of Judicial Magistrate, Ramnagar, District Nainital against the accused/petitioner for an offence punishable under Section 138 Negotiable Instrument Act, 1881, stating therein that accused had been working as Chief Operating Officer for the purpose of booking for the resort at Ramnagar; having collected business and amount, accused used to send the same to the complainant at Ramnagar; in discharge of liability of outstanding amount accused has issued 14 different cheques in favour of the complainant; check was presented in the Oriental Bank of Commerce, Branch Ramnagar (Nainital) for encashment, however, as per the memorandum issued by the bank dated 18.10.2012 cheque was dishonoured on the ground ‘stop payment’, a legal notice was issued from Ramnagar to the accused/petitioner on 16.11.2012 demanding the cheque’s amount; accused/petitioner herein did not make payment of the cheque amount within the statutory period of the notice, despite receiving the notice.

4. Learned Judicial Magistrate, vide order dated 02.01.2013, was pleased to summon the accused/petitioner under Section 138 Negotiable Instrument Act. Feeling aggrieved accused/petitioner has preferred present petitions under Section 482 Code of Criminal Procedure assailing the summoning order.

5. Mr. Hitendra Kr. Nahata, learned counsel for the accused/petitioner submits that petitioner as well as complainant have their respective offices at Delhi; petitioner was supposed to develop the business while sitting at Delhi and petitioner was supposed to collect payment at Delhi; cheque was issued of the bank account of Delhi branch, therefore, cause of action, if any, has arisen at Delhi, however, complaints were wrongly filed at Ramnagar (Nainital) just to harass the petitioner. Mr. Hitendra Kr. Nahata, learned counsel for the accused/petitioner further contends that in Criminal Misc. Application No. 109 of 2013, Criminal Misc. Application No. 110 of 2013 and Criminal Misc. Application No. 111 of 2013 cheques were earlier presented for the encashment in the month of July, 2012, however, were dishonoured on the ground of ‘stop payment’, therefore, presentation of cheques second time in the month of October, 2012 shall not give fresh cause of action to the complainant and complainant should have filed the complaints within the stipulated period after dishonour of cheques for the first time, consequently, complaint is time barred. Mr. Hitendra Kr. Nahata, learned counsel for the accused/petitioner further contends that cheques were not issued by the petitioner in discharge of any liability rather cheques were issued by the petitioner as security because petitioner was supposed to collect payment form the different clients, however payments were being delayed for no fault of the petitioner; petitioner was pressurized to issue cheques as security saying petitioner may collect the outstanding amount from different clients himself. He further contends since payment was not being released by different clients despite best efforts made by the petitioner, therefore, complainant was informed not to present the cheques for encashment and stop payment, instructions were issued to the Bank. According to Mr. Hitendra Kr. Nahata, learned counsel for the accused/petitioner since payment was stopped for the above said reasons, therefore, no offence under Section 138 Negotiable Instrument Act can be said to have been made out against the petitioner. He further submits that the petitioner has also filed civil suit before the Delhi Court agai