The main legal point established in the judgment is the applicability of Section 138 of the Negotiable Instruments Act in a transaction where a cheque was issued in the name of the petitioner's brother but collected by the petitioner, and the court's discretion to refrain from making a finding on the legal recoverability of the debt at an early stage.

Rakesh Ranjan, J.

Heard Mr. N. Surendrajit, learned counsel appearing for the petitioner and Mr. H. Iswarlal, learned counsel appearing for the respondent complainant.

2. This criminal petition filed under Section 482 of the Criminal Procedure Code is directed against the order dated 23.2.2015 passed in Cril (C) Case No.35 of 2015 whereby and where-under the Incharge Chief Judicial Magistrate, Imphal West, took cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act after recording that prima facie case is made out under Section 138 of the N.I. Act.

3. That order dated 23.2.2015 is under challenge.

4. Learned counsel appearing for the accused petitioner submits that whatever transaction took place, it took place in between the complainant and Mr. M. Biren Singh the younger brother of the petitioner and thereby the amount was given through Cheque by the complainant to the said M. Biren Singh. However, it has also been alleged that the petitioner, in discharge of the said debt had given the Cheque of Rs.12 to the complainant which got dishonoured when it was deposited by the complainant. But the fact remains that transaction had taken place in between the petitioner's brother and complainant and thereby the said amount cannot be said to be legally recoverable from the petitioner and thereby a case under Section 138 of the N.I. Act cannot be maintained against the petitioner and hence the Court did commit illegality in taking cognizance of the offence punishable under Section 138 of the NI Act against the petitioner.

5. Learned counsel further submits that it is true that in terms of Section 139 of the NI Act presumption would be there in favour of the holder that Cheque had been issued in discharge of the debt or other liability but it has clearly been held by the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54 that section 139 of the NI Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. By referring to the aforesaid proposition, learned counsel appearing for the petitioner submits that since the transaction was there in between the complainant and petitioner's brother the amount which the complainant is said to have given to the brother of the complainant is never legally recoverable from the petitioner and thereby order taking cognizance being bad is fit to be set aside.

6. As against this, learned counsel appearing for the complainant respondent submits that it is the case of the complainant that it was the petitioner who approached to the complainant for lending money of Rs.12 lakhs on the pretext that the petitioner is urgently in need of money for executing a contractual work and that on the date of occurrence it was the petitioner who came to the house of the complainant and received the Cheque of Rs.12 lakhs, which of course was in the name of Mr. M. Biren Singh, younger brother of the petitioner but in the circumstances as stated above it can never be said that the transaction was there in between the brother of the petitioner and the complainant rather transaction was very much there in between the petitioner and complainant and therefore, it was the petitioner who returned the money by way of Cheque which on deposit got dishonoured and thereby the petitioner did file a case upon which cognizance for the offence punishable under Section 138 of the NI Act has been taken and that the Court keeping in view the fact of the case has rightly taken cognizance of the offence punishable under Section 138 of the Act which never warrants to be interfered with by this Court. For better appreciation of the submissions advanced on behalf of the parties one needs to take notice of the