The legal presumption in favor of the holder of the cheque and the specific averments in the complaint are crucial in determining the enforceability of the debt and framing a charge under Section 138 of the Negotiable Instrument Act.

A.K. Shrivastava, J.

1. This revision petition has been filed by the petitioner/accused against the order dated 24.5.2005 passed by Additional Chief Judicial Magistrate, Bhopal in Case No. RT267/2004 rejecting the objections of petitioner in regard to framing of the charge against the applicant under Section 138 of the Negotiable Instrument Act, 1881 (in short 'the Act') and framing charge against him under Section 138 of the Act.

2. The respondent company filed a complaint against the petitioner under Section 138 read with Section 141 of the Act and Section 420 of IPC. The trial court registered the complaint and thereafter by the impugned order has framed the charge under Section 138 of the Act against the petitioner.

3. In brief the case of complainant as setforth in the complaint is that the complainant is a limited company registered under the Companies Act, 1956 having its registered office at the address mentioned in the complaint. In the meeting of the Board of Directors of complainant company held on 27th February, 2004, Mr. Sudhir Namdeo was appointed on behalf of the company to attend, appear and argue and sign the relevant papers on behalf of the company. The petitioner/accused is known to Mr. S.K. Jain who is the Director in the complainant company and on the request of the accused, Mr. S.K. Jain and other Director had given financial help to the accused and accused had always promised to pay back the outstanding amount. During such one meeting on 1.10.1999 the accused had given account statement figured Rs. 6,45,851/- as outstanding on the date and promised to pay the amount.

4. From the impugned order, it is also gathered that in the trading, profit and loss account of the year 200-2001 of M/s Abhimat Prakashan Pvt. Ltd. whose Managing Director is Kaptan Singh Thakur (accused) it has been shown that the loan has been obtained from the complainant.

5. The accused on 6.1.2004 assured the Director of the complainant that he will settle the outstanding amount which was calculated with interest as Rs. 13,09,852=00 and thus accused issued one cheque of Rs. 13,09,852=00 of Allahabad Bank in favour of the complainant company and assured Mr. S.K. Jain, the Director, to honour the said cheque. Copy of the cheque which is filed in the trial court has also been filed along with the revision petition. The complainant informed accused and presented the said cheque in his bank i.e. Union Bank of India, Arera Colony Branch, Bhopal on 15.1.2004 The Bank intimated that the said cheque is dishonoured due to "funds insufficient" on 16.1.2004. The said memo of the Bank has been placed in the trial court and the copies are also filed in this petition. Thus the accused committed the offence under Section 138(b) read with Section 141 of the Act and also under Section 420 IPC.

6. According to complainant after the receipt of the memorandum/information from his Bank, namely, Union Bank of India dated 16.1.2004, regarding return of the cheque as unpaid, the complainant sent one notice by registered A.D. post on 20.1.2004 to the accused which was duly received by the accused at his residence address on 22.1.2004 and thereafter the accused sent its reply on 3.2.2004 but did not make the payment of the outstanding amount mentioned in the notice. The accused was given 15 days' time from the date of receipt of the notice for making the payment of the said amount of the dishonoured cheque. However, the accused did not make the requisite payment and thus the complaint was filed praying therein to punish the accused as well as an order of payment double of the amount of the cheque of Rs. 13,09,852/-.

7. The petitioner/accused earlier filed a petition under Section 482 Cr.P.C. before this Court which was registered as M.Cr.C. No. 8448/2004, for the quashment of the complaint on the ground that debt or liability for which the cheque was issued is not legally enforceable because the complainant had not shown in the complaint that on what date t