ORDER
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 the money was advanced and no valid acknowledgement of debt has been filed along with the complaint. The claim is barred by limitation. Though the cheque has been issued by the company but notice under Clause (b) of proviso to Section 138 of the Act was not served on the company and the same has been served on individual. This Court while dismissing the petition under Section 482 Cr.P.C. on 9.11.2004 directed that all the grounds which were raised by the petitioner, can be raised before the trial court itself and the petitioner cannot be allowed to come directly.
8. The above said order was assailed by the petitioner before the Apex Court [379/2005 Special Leave to Appeal Criminal]. The Apex Court declined to interfere in the order passed by this Court dismissing the petition under Section 482 Cr.P.C. and the Special Leave Petition was dismissed. However, it was directed and the petitioner/accused was allowed to raise these objections before the Magistrate at appropriate time including the stage at which the charges, if any, are framed.
9. Thereafter, the accused raised following objections at the time of framing of the charge before the trial court:
(i) the complaint is silent that on which date the financial aid was provided ; therefore it cannot be said that any amount as required to be paid by the accused;
(ii) the debt or other liability should be legally enforceable and therefore it was necessary to mention in the complaint that when the amount was given to the accused and whether the said debt was in existence and could be legally recoverable on the date of the issuance of the impugned cheque. No acknowledgement of the accused has been filed along with the complaint;
(iii) third objection which was taken is that since the impugned cheque has been issued on behalf of the company as such the notice required under Sub-clause (b) of Section 138 should have been sent to the company and not to the individual. Admittedly in the present case, no notice has been sent to the company and therefore the petitioner/accused who has been arrayed in the private capacity cannot be arrayed as an accused;
(iv) Under Section 291 and 292 of the Indian Companies Act, 1956, the power of a Company vests in the Board of Directors and the Company can act only upon the resolution of the Board of Directors. Unless and until the Board of Directors resolve on behalf of the Company to take some legal action, no action on behalf of the Company can be taken.
The trial court rejected all above said objections raised by the accused/petitioner by the impugned order and has framed thereafter a charge under Section 138 of the Act against the petitioner. Hence this petition has been filed by the petitioner/accused.
10. Shri Kishore Shrivastava, learned senior counsel, indeed, has raised all those objections in this revision again. According to learned senior counsel the complaint has been filed by one Shri Sudhir Namdeo who has no authority to file complaint. In that regard he has invited my attention to the resolution passed in the meeting of the Board of Directors of the complainant company wherein Shri Sudhir Namdeo has not been authorized to file the complaint on behalf of the company. He has also submitted that the resolution dated 27.2.2004 is in past tense and therefore since the resolution is in past tense, therefore the complaint which was filed lateron for it, there is no resolution. Learned senior counsel has submitted that the said authorization is to sue the company M/s Abhimat Prakashan Pvt. Ltd. However, the company has not been arrayed as an accused, but, the complaint has been filed against the present petitioner Kaptan Singh. By inviting my attention to Section 293 and 294 of the Companies Act, it has been contended that the resolution should have been passed in the general meeting and there is no material on record in order to show that there was any such resolution. In support of his contention, learned Counsel has placed reliance on the decision of Nibro Limited v. National Insurance Co. Ltd. . By taking the aid of the Division Bench decision of Andhra Pradesh High Court in the case of Satish and Company v. S.R. Traders and Ors.1998 CRI.L.J. 419, it has been contended that beyond the resolution Mr. Namdeo is not authorized to do anything and even if the resolution is stretched to the extent that Mr. Namdeo was authorized to file the complaint, then it was to the extent to file it against the company but there was no such authorization to file the complaint against Kaptan Singh.
11. It has been then submitted by learned Counsel that there are inherent contradictions in the complaint. The complaint has been filed on behalf of the company but there is nothing in the complaint in order to show that the loan was given by the company. By inviting my attention to Section 138(b) it has been contended that under this section, the payee or holder in due course of the cheque, should make a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque. But, the debt or the other liability should be for the payee or the holder of the cheque and the notice in writing should be given to the drawer of the cheque within 15 days of the receipt of the information received by the payee or the holder of the cheque from the Bank regarding the return of the cheque as unpaid. By inviting my attention to the averments made in the complaint, it has been contended that according to the complaint, Mr. Kaptan Singh Thakur is known to Mr. S.K. Jain, Director in the complainant company and on the request made by the accused to Mr. S.K. Jain and other Directors, the financial help was given to the accused and he promised to pay back the outstanding amount. Thus, according to the complaint, Mr. S.K. Jain who is one of the Director of the Company had given financial help to the accused and not the petitioner company and therefore since the complainant is not filed by Mr. S.K. Jain, the same is not maintainable.
12. Learned senior counsel by inviting my attention to para 2 of the complaint has stated that according to complainant’s own case during one meeting held on 1.10.1999 accused had given account statement figure of Rs. 6,45,851/- outstanding on that date and promised to pay the said amount, therefore, the date 6.1.2004 when the cheque was issued the alleged debt became time barred and could have been revived only by a fresh contract in terms of Section 25(3) of the Indian Contract Act, 1872 and for that there should be a written agreement signed by the person. Since there is no such written contract for the time barred debt, no complaint can be filed. In that regard my attention has also been drawn to the explanation to Section 138 of the Act wherein for the purpose of this section, “debt or other liability” means a legally enforceable debt or other liability. By adverting my attention to Section 18 of the Indian Limitation Act, 1963, it has been contended by learned senior counsel that the acknowledgement should be before the expiration of the prescribed period and further it should be in writing and signed by the party. Since there is no acknowledgement in writing and signed by the accused, therefore, the complaint is not maintainable and charge under Section 138 of the Act cannot be framed. In support of his contention, learned Counsel has placed reliance on the decision of Andhra Pradesh High Court Girdhari Lal Rathi v. P.T.V. Ramanujachari and Anr. 1997 (2) Crimes 658 and the decision of Kerala High Court in Joseph v. Devassia 2001 (3) Crimes 229. Thus, according to learned senior counsel cheque must be issued for the debt and liability which is alive and but not for the debt or the liability which has become dead. It has been argued that the explanation to Section 138 should be strictly construed.
13. It has been further canvassed by learned senior counsel that under the Act if the offender is a company then the company should also be prosecuted along with the Director. In that regard much emphasis has been placed reliance by learned senior counsel on the term “as well as the company” embodied in Section 141 of the Act. Thus, according to learned Counsel where the company is to be prosecuted, the Director alone cannot be prosecuted. In that regard he has invited my attention to the decision of the Supreme Court Anil Hada v. Indian Acrylic Ltd. and also S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalia and Anr. . According to learned senior counsel since the cheque has been issued on behalf of the company, the actual offender is the company. By inviting my attention to Section 204 Cr.P.C. it has been contended by learned senior counsel that the Magistrate taking cognizance of an offence should satisfy that there is sufficient ground for proceeding in the case and since there are serious infirmities in the complaint, the Magistrate should not have proceeded with the matter. It has been further propounded by learned senior counsel that if one has to be prosecuted with the aid of Section 141 of the Act, there should be strict compliance in regard to prosecuting the company along with the Directors. The learned Counsel in that regard has placed reliance on following decisions:
(i) K.P.G. Nair v. Jindal Menthol India Ltd.
(ii) Katta Sujatha (Smt) v. Fertilizers & Chemicals Travancore Ltd and Anr.
(III) Monaben Ketanbhai Shah and Anr. v. State of Gujarat and Anr.
Thus according to learned senior counsel since the company has not been prosecuted and the cheque has been said to be issued by the company, the present petitioner cannot be prosecuted.
14. Learned senior counsel has also invited my attention to the notice sent under Section 138 of the Act and has contended that the notice should go to the drawer of the cheque and since the drawer is the company, notice ought to have been sent to the company. Admittedly, the notice was not sent to the company but was sent to the accused. It has been further submitted by learned senior counsel that the complaint is silent in regard to the status of Kaptan Singh in the company. Whether he is Director, Managing Director or any officer in the company. On these premised submissions, it has been argued by learned senior counsel that the accused/petitioner cannot be charged under Section 138 of the Cr.P.C. and the impugned order framing charge be quashed.
15. Per contra, Shri G.S. Ahluwalia, learned Counsel appearing for the complainant/respondent has argued that if the resolution has not been happily worded, the question is whether at the threshold, the complaint should be thrown out? According to learned Counsel at the outset the complaint cannot be dismissed and in support of his contention he has placed reliance on the decision of Supreme Court M.M.T.C. Ltd. and Anr. v. Medchl Chemicals and Pharma (P) Ltd. and Anr. . It has been then contended by learned Counsel for respondent that even if no notice was sent to the company, the complaint cannot be dismissed and the same is still maintainable against the Director. In that regard he has invited my attention to two decisions of the Supreme Court, they are Rajneesh Aggarwal v. Amit J. Bhalla and Bilakchand Gyanchand Co. v. A. Chinnaswami . By inviting my attention to the decision of Anil Hada (supra) which has been placed reliance by learned senior counsel for the petitioner, it has been contended by Shri Ahluwalia, learned Counsel for the respondent that not arraying the company as an accused would in itself is not fatal.
16. By replying the argument of learned senior counsel that the petitioner/accused is one of the Director of the Company, it has been contended by Shri Ahluwalia that in the cause title of the complaint the name of accused Mr. Kaptan Singh Thakur has been mentioned and it has been mentioned that he is the Chairman and the Managing Director of “M/s Abhimat Prakashan Pvt. Ltd.” and in the body of the complaint the word “accused” is mentioned which would mean Kaptan Singh who is the Chairman and Managing Director of M/s Abhimat Prakashan Pvt. Ltd. Shri Ahluwalia, learned Counsel for respondent by placing reliance on the decision of the Supreme Court S.M.S. Pharmaceuticals Ltd. (supra) has submitted that the three Judge Bench of the Supreme Court while answering the questions of references referred to it, if considered in proper perspective, and specially answer to question “c”, it would reveal that the signatory of a cheque which is dishonoured is responsible for the incriminating Act and will be covered under Sub-section (2) of Section 141 of the Act. Since the petitioner/accused is a signatory of the cheque he cannot be escaped and the charge has been rightly framed.
17. By replying the argument of the objection in regard to legally recoverable debt raised by learned senior counsel for the petitioner, it has been contended by Shri Ahluwalia, learned Counsel for the respondent that in the impugned order there is a reference of the balance sheet of the company of the year 2001-2002 in which the accused is the Chairman and the Managing Director, and in the balance sheet it has been mentioned that there is an outstanding amount to be paid to the complainant company and if that is the position, the complaint which was filed on 5.3.2004 cannot be said to be a complaint for a demand of a time barred debt. In support of his contention learned Counsel has placed reliance on the decision of Supreme Court in the case of A.V. Murthy v. B.S. Nagabasavanna . Shri Ahluwalia, learned Counsel by inviting my attention to legal presumption under Section 139 of the Act, has submitted that the statute has conferred a presumption in favour of the holder and it shall be presumed, unless the contrary is proved that a holder of the cheque received cheque, of the nature referred to in Section 138 for the discharge, in whole or in part of any debt or other liability. According to learned Counsel there is sufficient material in order to frame the charge and the trial court rightly framed the charge. In that regard learned Counsel placed reliance on the decision of the Supreme Court M.M.T.C. Ltd. (supra), K.N. Beena v. Mumiyappan and Anr. and Hiten P. Dalal v. Bratindranath Banerjee and has submitted that the burden of proof is on the accused to prove that it is a time barred debt and which can only be decided after recording the evidence.
18. In reply to the argument of Shri Ahluwalia learned Counsel for the respondent, it has been contended by learned senior counsel Shri Kishore Shrivastava that any observation of the Supreme Court cannot be stretched to the extent of precedent and in that regard he has placed reliance on three decisions they are Director of Settlements A.P. and Ors. v. M.R. Apparao and Ors. , Orient Paper and Industries Ltd. and Anr. etc. etc. v. State of Orissa and Ors. and Common Cause v. Union of India and Ors. and thus according to learned senior counsel, the decision of A.V. Murthy (supra) cannot be said to be a precedent. It has also been vehemently submitted by learned senior counsel that in para 2 and 4 of the complaint it has been contended that accused had issued the cheque and there is no averment that he signed the cheque and thus, since there is no averment in the complaint that the accused/petitioner signed the cheque, on the contrary, there is averment that he has only issued the cheque, no criminal liability can be fastened on him.
19. After having heard learned Counsel for the parties, I am of the view that this petition deserves to be dismissed.
20. In the decision of S.M.S. Pharmaceuticals Ltd. (supra) , a larger Bench of the Supreme Court was constituted and the following questions were referred to it which reads thus:
(a) Whether for purposes of Section 141 of the Negotiable Instruments Act, 1881, it is sufficient if the substance of the allegation read as a whole fulfil the requirements of the said section and it is not necessary to specifically state in the complaint that the person accused was in charge of, or responsible for, the conduct of the business of the company.
(b) Whether a director of a company would be deemed to be in charge of, and responsible to, the company for conduct of the business of the company and, therefore, deemed to be guilty of the offence unless he proves to the contrary.
(c) Even if it is held that specific averments are necessary, whether in the absence of such averments the signatory of the cheque and or the managing directors or joint managing director who admittedly would be in charge of the company and responsible to the company for conduct of its business could be proceeded against.
21. After considering several decisions, the questions of reference were answered in para 19 as under:
(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.
(b) The answer to the question posed in sub-para (b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.
(c) The answer to Question (c) has to be in the affirmative. The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under Sub-section (2) of Section 141.
(emphasis supplied)
22. Thus, the larger Bench of the Supreme Court in S.M.S. Pharmaceuticals Ltd. (supra), by answering all the questions referred to it specifically held that so far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for incriminating act and will be covered under Sub-section (2) of Section 141 of the Act. In the present case there is specific averment in the complaint that the accused/petitioner issued a cheque of Rs. 13,09,852.00 of Allahabad Bank MCA, Habibganj Branch in favour of the complainant company. On bare perusal of the photocopy of the impugned cheque, it is gathered that it bears the signature of Kaptan Singh Thakur in between the specified space of the seal of Abhimat Prakashan Pvt. Ltd. On bare perusal one can read “K.S. Thakur Director”. In the cause title of the complaint, where the description of accused has been mentioned, it is gathered that Kaptan Singh Thakur, Chairman and Managing Director M/s Abhimat Prakashan Pvt. Ltd. has been arrayed as accused and if for the convenience, in the body of complaint he has been denoted by the term “accused” it would mean that Kaptan Singh Thakur Chairman and Managing Director of M/s Abhimat Prakashan Pvt. Ltd. Thus, there is no force in the contention of learned senior counsel for the petitioner that in the complaint that nowhere it is mentioned that what is the status of Kaptan Singh. On being asked to him specifically that what is the status of Kaptan Singh in the company Abhimat Prakashan Pvt. Ltd, learned senior counsel did not specifically answer to the query but conveniently argued that it should have come in the complaint that what is the status of accused in the company. The word “accused” which has been used in the complaint would mean the person whose description has been given in the cause title of the complaint. Since there is averment in the complaint that the accused issued the cheque, rightly he has been prosecuted.
23. There is no merit in the contention of learned Counsel that because no where in the complaint it has been mentioned that the accused has signed the impugned cheque of Rs. 13,05,852/-, on the contrary there is an averment that the accused had only issued the cheque therefore it cannot be said that the accused has in fact signed the cheque. On bare perusal of the photocopy of the cheque clearly the signature of K.S. Thakur, Director, Abhimat Prakashan is appearing, therefore it cannot be said that the accused has not signed the cheque. Apart from this the word “issue” cannot be construed in a narrower and it should be interpreted in comprehensive manner. In Section 140 of the Act also, where the legislature has disallowed certain type of the defence to be taken in the prosecution under Section 138, has clearly used the words “that he issued the cheque”. Thus the word “issued” is comprehensive enough and would also include signature on the cheque. For better understanding, it would be condign to quote Section 140 of the Act which reads thus:
140. Defence which may not be allowed in any prosecution under Section 138. – It shall not be a defence in a prosecution for an offence under Section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that section.
(emphasis supplied)
24. In the Act the word “issue” has not been defined. In the Advance Law Lexicon by P. Ramanatha Aiyer (3rd edition 2005) the expression “issued” is not to be used in the narrow sense of “sent”. The dictionary meaning of the expression “issued” takes the entire process of sending the notice as well as the service thereof in the same manner the word “issued” used for the cheque should also be construed. In the same book the term “issued” as used in the issuance of a life insurance policy, means that when the policy is “made” and delivered in pursuance with the laws of the state legalizing such policies. According to Advance Lax Lexicon, the term “issue” would mean the original making of a negotiable instrument and first delivery to another person. Thus, if the word issued has been used by the complainant in the complaint, after reading the entire complaint, it would mean and also include signing of the cheque by the accused. Even otherwise, if the word “sign” is not used in para 2 and 4 of the complaint and instead the said word, word “issued” is used, it should be read in the context that it was signed by the accused.
25. So far as the objection in regard to the defective resolution of the complainant company is concerned, merely because the resolution is not happily worded, at the threshold, and that too at the time of framing of the charge, the complaint cannot be dismissed. The Supreme Court in the case of M.M.T.C. Ltd. (supra), has taken much care of it and has held that merely because complainant has signed and presented by a person who is neither as authorized agent nor a person empowered under the Articles of Association or by any resolution of the Board to do so, is no ground to quash the complaint. The Supreme Court has further held that it is open to the complainant company to seek permission of the court for sending any other person to represent the company in the court and therefore even presuming that initially there was no authority, still the company can at any stage, rectify that defect. Since sufficient light on the controversy has been thrown by the Supreme Court in this decision, therefore it is not necessary to discuss the decision of M/s Nibro Limited (supra) and M/s. Satish and Company (supra) which were placed reliance by learned senior counsel for the petitioner.
26. So far as the objection that the offence has been committed by the Company and the Company has not been arrayed as an accused and without arraying the company as well, the other person cannot be prosecuted under Section 141 of the Act is concerned, there is complete answer of this argument in the case of S.M.S. Pharmaceuticals Ltd. (supra) , which I have quoted hereinabove wherein it has been specifically mentioned that the so far as signatory of a cheque which is dishonoured is concerned he is clearly responsible for the incriminating act and he will be covered under Sub-section (2) of Section 141 of the Act. I have already held hereinabove that there is sufficient averment in the complaint that the accused/petitioner has issued the cheque and since he is the signatory of the cheque, rightly he has been arrayed as accused and rightly the charge has been framed. Even if the company is not prosecuted, it would not be fatal and a director of that company can be prosecuted. In that regard the decision of are Rajneesh Aggarwal (supra) and and M/s Bilakchand Gvanchand Co (supra) can be placed reliance.
27. The next question for consideration is in regard to the “debt or other liability” whether it is legally enforceable debt or other liability. In this regard it would be profitable to read the explanation to Section 138 of the Act which postulates that for the purpose of Section 138 “debt or other liability” would mean a legally enforceable debt or other liability. The contention of Shri Kishore Shrivastava, learned Counsel is that as per the own showing in para 2 of its complaint it has been mentioned that during one such meeting on 1.10.1999 the accused had given account statement figure of Rs. 6,45,851/- as outstanding on the date and promised to pay the amount and thus even if this date i.e. 1.10.1999 is taken to be the starting point of limitation, the debt became barred by time on 30.9.2002 and therefore if some cheque on 6.1.2004 has been issued by the accused for the settlement of the said debt, the said debt cannot be legally enforced by launching this type of prosecution since it had become time barred. It is no doubt true that if a time barred debt is to be legalized, there should be a written agreement in terms of Section 25(3) of the Contract Act and it should be signed by the person to be charged or by his agent jointly or substantially authorized in that behalf to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits he could not file the proceeding and that type of agreement would be a contract. In the present case, there is no agreement in writing signing by the accused. But, merely on this ground the point would not come to rest, in order to benefit the accused. The trial court has taken care of this aspect in its order and has mentioned in impugned order that trading, profit and loss account of the year 2001-02 of the Abhimat Prakashan Limited, there is an entry in regard to the taking of loan from the petitioner company and if that is the position, the view of this Court is that there is sufficient material on record to frame charge under Section 138 of the Act. I am straying my hands in giving my final opinion in that regard. At the most, this could be a defence for the petitioner/accused and the defence is always to be tested during the trial and not at the time of the framing of the charge. Therefore, this defence point of the accused/petitioner is kept open for the trial which may be decided after recording the evidence in the trial court at the time of recording the judgment. It has not been argued that there is no entry of the loan in the trading, profit and loss account of the year 2001-2002.
28. Apart from this, Section 139 of the Act clearly postulates a legal presumption in favour of the holder of the cheque. According to this Section it shall be presumed unless the contrary is proved that the holder of a cheque received a cheque, of the nature referred to it in Section 138 for the discharge, in whole or in part, of any debt or other liability. Thus, in order to prove contrary there should be a trial in which contrary is required to be proved by the accused in his defence. Thus, the impugned order passed by the trial court framing the charge under Section 138 of the Act cannot be said to be arbitrary or in contravention to any provision of the Act. The burden of proof to the contrary is on accused that there was no existing debt or liability. In that context the decision of M/s M.M.T.C. Ltd. (supra). K.N. Beena (supra) and Hiten P. Dalai (supra) may be taken into consideration.
29. On the basis of the larger Bench decision of the Supreme Court in S.M.S. Pharmaceuticals Ltd. (supra) and the law laid down in the said case the decision of Anil Hada (supra), K.P.G. Nair (supra), Katta Sujatha (Smt) (supra) and Monaben Ketanbhai Shah (supra) are distinguishable.
30. I have given my anxious and bestowed consideration to the reasonings assigned by the trial court framing the charge under Section 138 of the Act and rejecting the objections of the accused/petitioner, I find them to be quite cogent, by judging from all the angles. There is sufficient material to frame charge under Section 138 of the Act against the petitioner/accused and the trial court rightly framed the said charge.
31. Resultantly, this revision petition is found to be devoid of any substance and the same is hereby dismissed.