Sandeep Sharma, J. (Oral)

Through instant petition filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023, prayer has been made by the petitioners for quashing of complaint No. 237/2024, titled as Goel Motors v. Om Cheeva Business, having been filed by the respondent under Section 138 of the Negotiable Instruments Act (in short the “Act”), along with consequential proceedings pending before the learned Judicial Magistrate First Class, Bilaspur.

2. Precisely, the grouse of the petitioners as has been highlighted in the petition and further canvassed by Mr. Vijay K. Arora, Senior Advocate, is that complaint sought to be quashed is not maintainable and as such, deserves to be quashed and set aside. Mr. Arora, while making this Court peruse pleadings as well as documents adduced on record, vehemently argued that since agreement (Annexure P-3) executed inter-se parties for providing ten transport vehicles stood terminated, petitioners vide written communication dated 14.12.2023 (Annexure P-4), requested the respondent to return the cheque kept as security, but respondent misused the same and instituted complaint under Section 138 of the Act in the competent court of law against the petitioners. Mr. Arora further invited attention of this Court to communication dated 28.12.2023 (Annexure P-6), addressed to Branch Head, State Bank of India, SME Business Bazar Branch Biharsharif, Nalanda, Bihar, to state that cheque bearing registration No.539036 was issued to respondent-Goel Motors as security, but since agreement inter-se parties stood terminated, petitioner made a request to afore bank that payment, if any, claimed through afore cheque, may be stopped. While inviting attention of this Court to copy of cheque (available at page 35 of the paper book), learned Senior Advocate, further argued that blank cheque was accepted by the bank as is evident from the endorsement given on the same, which fact itself suggests that same was kept as security. He submitted that since contract inter-se parties stands terminated and as of today, no liability exists in terms thereof, no fruitful purpose would be served in case complaint lodged at the behest of the complainant under Section 138 of the Act is permitted to sustain, rather that would put the petitioners to ordeal of protracted trial, which is bound to fail.

3. To the contrary, Mr. T.S. Chauhan, learned Senior Advocate, appearing for the respondent vehemently argued that present petition is wholly misconceived and not maintainable. Mr. Chauhan, further argued that once factum with regard to issuance of cheque as well as signature thereupon is admitted by the petitioners coupled with the fact that cheque in question was issued in terms of agreement executed inter-se parties for supply of transport vehicles, Sections 118 and 139 of the Act come into play, which speak about presumption in favour of the holder of the cheque that same was issued in discharge of the lawful liability. No doubt, aforesaid presumption is rebuttable, but for that purpose, accused is under obligation to raise probable defence. Probable defence can be raised by the accused by referring to the documents as well as evidence adduced on record by the complainant or by leading some cogent and convincing evidence. He states that “whether cheque in question was issued as security or same was issued towards discharge of lawful liability, is a question to be decided by the learned trial court in totality of pleadings as well as evidence led on record by the respective parties, but for the reasons and arguments raised at the behest of the petitioners, complaint cannot be quashed.

4. Having heard learned counsel for the parties and perused material available on record, this court finds no merit in the present petition for the reason that it is admitted case of the petitioners that cheque in question, which is subject matter of the complaint filed under Section 138 of the Act, which is otherwise sought to be quashed in