JUDGMENT
U.S. Tripathi, J.
1. This application under Section 482, Cr.P.C. has been filed for quashing the criminal complaint in Case No. 2103 of 1995, Ramesh Chand v. Sunder Lal Arora, and the summoning order in compliance of order dated 15.10.1997 passed by XIIIth Additional Sessions Judge, Agra, order dated 6.7.1998 passed by A.C.J.M. Agra and the order dated 3.9.1998 passed by Incharge Sessions Judge, Agra.
2. The opposite party No. 2 Ramesh Chand filed a complaint against the applicant under Section 138 of Negotiable Instruments Act with the allegations that the applicant negotiated to purchase his property Nos. 14/182 and 14/185, Hospital Road, Agra and obtained a written agreement on stamp paper. Thereafter, he issued account payee cheque for Rs. 1 lac relating to State Bank of India, Shev Ka Bajar, Agra. The opposite party No. 2 presented the said cheque on 1.7.1995 for encashment, but it was dishonoured on the ground of “stop payment”. The opposite party No. 2 sent a registered notice dated 10.7.1995 to the applicant and demanded money, but he failed to pay the same, hence the complaint. The opposite party No. 2 examined himself under Section 200 and his witnesses under Section 202, Cr.P.C. ON the perusal of the above evidence, the learned Magistrate dismissed the complaint, vide order dated 21.6.1996.
3. Aggrieved with the said order, the opposite party No. 2 filed Criminal Prevision No. 278 of 1996. The Revisional Court i.e., Xlllth Additional Sessions Judge, by his orde/ dated 15.10.1997 allowed the revision, set aside the order dated 21.6.1996 and ordered the Magistrate to summon the applicant under Section 138 of Negotiable Instruments Act. Accordingly, the learned Magistrate, vide his order dated 18.11.1997 summoned the applicant. The applicant appeared and filed objection before the Magistrate, but the Magistrate rejected the above objection, vide order dated 25.4.1998. The applicant preferred revision, which was also rejected by Incharge Sessions Judge on 3.9.1998.
4. Heard the learned Counsel for he parties and perused the record.
5. It was contended by the learned Counsel for the applicant that the complaint filed by opposite party No. 2 was not maintainable as there was no assertion in the complaint or in me statements under Sections 200 and 202, Cr. P.C. that cheque was issued in discharge of whole or part of legally enforceable debt or liability and in the absence of any allegation in this regard, the applicant was not liable for prosecution under Section 138 of Negotiable Instruments Act. He further contended that agreements to sell in respect of the property mentioned was neither executed nor registered when the alleged cheque dated 22.5.1995 was issued. Till the date no agreement to sell of the property had been executed or registered and in this circumstance, the applicant directed his Bank to stop payment of cheque dated 22.5.1995, as the cheque was not issued by the applicant against any legally enforceable debt or liability.
6. On the other hand, the learned Counsel for the opposite party No. 2 contended that under Section 139 of the Negotiable Instruments Act, a presumption must be drawn that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part of any debt or other liability unless the contrary is proved.
7. The learned Counsel for the applicant relying on the Explanation to Section 138 of Negotiable Instruments Act contended that for the purposes of Section 138 “debt or other liability” means a legally enforceable debt or other liability. That till the issuance of cheque no agreement was executed or registered and, therefore, there was no legally enforceable debt or other liability. He also placed reliance on case law, Uplanche Mallikarjun v. Rat Kanti Vimala, I (1998) BC 677= 1997 Crl. LJ 4237 (A.P. High Court). It, is true that according to Section 138, Negotiable Instruments Act, it is clear that the cheque should be issued by the drawer in discharge of full or part of the debt or other liability and if the said cheque is dishonoured due to insufficiency of fund, etc. then only Section 138 of the Act may be attracted, if other conditions are complied with. A perusal of the complaint, which is Annexure-1 to the affidavit of the applicant, shows that written agreement on stamp paper of Rs. 100/- was prepared and on 22 5.1995, the opposite party No. 2 signed the said agreement. The cheque in question was issued on 22.5.1995. The opposite party No. 2 also stated in his statement under Section 200, Cr.P.C. (Annexure-2 to the affidavit) that he signed the agreement on 22.5.1995. According to above allegations of the complaint, the agreement between the parties was executed prior to issuance of cheque. The agreement was executed for consideration and in lieu of consideration, the applicant issued a cheque of Rs. 1 lac. Therefore, the applicant owed liability to pay the debt. Moreover, under Section 139 of Negotiable Instruments Act, there is presumption that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge in whole or in part, of any debt or other liability. It has been held by the Supreme Court in the case of Maruti Udyog Ltd. v. Narender and Ors, 1999(1) SCC 113, that in view of the express provisions of Section 139 of Negotiable Instruments Act, a presumption must be drawn that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge of any debt or other liability unless the contrary is proved. Therefore, the High Court was not justified in entertaining the plea of accused-respondent at the initial stage of proceeding and quashing the complaint filed by the appellant. No doubt, presumption under Section 139 is rebuttable presumption and it may be rebutted at the stage of evidence. The evidence regarding rebuttal may be adduced at the stage of trial and if the trial Court finds the above evidence on rebuttal sufficient for holding that there was no debt or other enforceable liability, it may pass an appropriate order.
8. It is also settled position of liability as held in the case of Modi Cement Ltd. v. Kuchil Kumar Nandi, I (1998) BC 421 (SC)=III (1998) SLT 226=1 (1999) CCR 44 (SC )= 1998(3) SCC 249, that even if a cheque is dishonoured because of “stop payment” instruction to the Bank, Section 138 would get attracted. It was further held in the said case that the Court taking cognizance of the complaint under Section 138 of the Act is required to be satisfied as to whether a prima facie case is made out under the said provision. The drawer of the cheque undoubtedly, gets an opportunity under Section 139 of the Act to rebut the presumption at the trial. A petition under Section 482, Cr. P.C., is tenable when no offence even prima facie was made out in the complaint. But the application thereof will depend upon the averments made in the complaint. As mentioned above, the averments made in the petition that the agreement was not executed prior to issuance of cheque has been controverted and correct position has to be ascertained by the trial Court. The applicant-accused is also at liberty to lead evidence regarding rebuttal at the stage of trial.
9. Therefore, in view of the allegations contained in the complaint, I find no ground for quashing the complaint and the summoning order in the exercise of jurisdiction under Section 482, Cr.P.C. The application having no force, is liable to be dismissed and is accordingly dismissed.
Stay order dated 18.9.1998 is vacated.