O R D E R

The applicant has filed the present petition being aggrieved by the order dated 25.7.2020 passed by Additional Sessions Judge, Nagda, District Ujjain whereby Criminal Revision No.3/2019 has been dismissed and the order passed by Judicial Magistrate, First Class (JMFC) dated 16.11.2018 has been upheld.

2. Facts of the case, in short, are as under :

Respondent (hereinafter referred to as ‘complainant’ ) filed a complaint u/s. 138 of the Negotiable Instruments Act and u/s. 420 of the IPC on 4.6.2010 against the applicant in respect of cheque No.570793 dated 21.9.2009 for payment of Rs.15,75,000/-. According to the respondent/complainant, in a course of the business transaction, she supplied the grains to the present applicant and for payment of the bill amount, the applicant issued a cheque of Rs.15,75,000/- dated 21.9.2009. The said cheque was presented in the bank account for the realisation of money twice on 24.9.2009 and 22.3.2010, but the same was returned unpaid due to “insufficient funds” in the account of the applicant. Thereafter, the complainant issued a legal notice to the applicant on 20.4.2010 which was replied to on 28.5.2010.

The complainant filed a complaint for initiation of proceedings u/s. 138 of the Negotiable Instruments Act as well as u/s. 420 of the I.P.C. against the applicant . Learned JMFC recorded the evidence as per provisions of Section 244 of the Cr.P.C. and permitted the applicant to cross-examine the complainant i.e. P.W.1 - Ramesh Jain and P.W.2 - Mahendra Jain. After recording the evidence before the charge, the applicant has applied to discharge but the application has been dismissed vide order dated 5.1.2013.

Being aggrieved by the aforesaid order, the applicant filed a revision u/s. 397 of the Cr.P.C. which was partly allowed vide order dated 24.7.2018 by remitting the matter back to the trial court for fresh consideration. After the remand, the complaint came up for hearing on 16.11.2018 but the complainant did not press the allegations levelled u/s. 420 of the IPC and the learned trial Court has against dismissed the application of discharged from the charge u/s. 138 of the Negotiable Instruments Act against the applicant/accused.

Being aggrieved by the order dated 16.11.2018, the applicant again filed the Criminal Revision before the Sessions Court and vide order dated 25.7.2020, the Criminal Revision has been dismissed.

Hence, the present petition u/s. 482 of the Cr.P.C.

3. Shri Arjun Agrawal, learned counsel appearing for the applicant submits that the courts below have committed serious error of law in ignoring the entire evidence recorded u/s. 244 of the Cr.P.C. while deciding the application for discharge u/s. 245 of the Cr.P.C. Both the courts below have erred in holding that at the time of framing of charge, only the prima facie case has to be seen. Once the complainant has examined P.W.-1 and P.W.-2 and they were cross- examined, even then prima facie case has not been made out, therefore, the applicant ought to have been discharged. Learned courts below have failed to follow the principles of law as laid down by the Apex Court in the case of Sunil Mehta V/s. State of Gujarat : (2013) 9 SCC 209 (Para 16 to 19). He has also placed reliance over the judgment passed by the Supreme Court of India Court in the case of Kumar Exports V/s. Sharma Carpets : (2009) 2 SCC 513 (Para 12 to 21) in which the Hon’ble Court has held that in order to determine the question as to whether offence punishable u/s. 138 of the Act is made out against the accused, it will be necessary to examine the scope and ambit of presumptions to be raised as envisaged by the provisions of Section 118 and 139 of the Act. There are various admissions by P.W.1 and P.W.2 in their cross- examinations which favours the present applicant but the same has been ignored by the courts below while rejecting the application for discharge. Hence, the impugned orders are liable to be set aside and the applicant is liable to be di