1 2025:CGHC:20809 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 3500 of 2024 1 - M/s Singh Services Proprietor Nitesh Singh S/o Vijay Bahadur Singh, Presently Aged About 35 Years, R/o Mahesh Nagar, Basantpur Road, Rajnandgaon,, District : Rajnandgaon, Chhattisgarh ... Petitioner(s) versus 1 - M/s A.S.A. Engineering Proprietor Abhishek Singh, Jawahar Nagar, Durg, District : Durg, Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. T. K. Tiwari, Advocate. For Respondent(s) : Mr. A. K. Pansari, Advocate. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 06/05/2025 1. The petitioner has filed the instant petition under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023, (in short “BNSS”) against the order dated 18-10-2024, passed by learned Judicial Magistrate First Class, Durg, in Criminal Complaint Case bearing number RCC/20057/2024, whereby the learned trial court registered the complaint case filed by the respondent under Section 138 of the Negotiable Instruments Act, 1881 (in short “NI Act”). 2. The brief facts of the case are that the petitioner is an accused in the Criminal Complaint Case No. RCC/20057/2024 pending before the learned ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.05.21 12:09:03 +0530 2 Judicial Magistrate First Class, Durg. The Respondent has filed a complaint case on 07-10-2024, under Section 138 of the NI Act, with the allegation that the complainant is the proprietor of the complainant firm and the accused is also the proprietor of the accused firm. To fulfill the financial liabilities, the accused had issued a cheque in his favour bearing No. 084052 dated 27-08- 2024 of Rs. 10,50,000/- which was of Bank of Baroda, Rajnandgaon branch, towards part payment of the liability. When the complainant had deposited the said cheque in his bank account, the same was dishonoured by the payee bank on 02-09-2024 on “Payment stopped by drawer”. The legal demand notice was served upon the accused, and thereafter, the complaint case is filed before the learned Judicial Magistrate First Class, Durg, under Section 138 of the NI Act. 3. On 07-10-2024, the complaint case is filed, and on 18-10-2024, the same is registered for the offence under Section 138 of the NI Act, and the process is issued to the accused for his appearance. The said order dated 18-10-2024 passed by the learned trial court is under challenge in the present petition filed by the accused. 4. Learned counsel for the petitioner/accused would submit that there was no legally enforceable debt existed on the date when the cheque is said to have been given to the complainant. There was an agreement between the parties on 09-03-2021 in which the same cheque number is mentioned that it will be given to the complainant as security against the amount which has been deposited by the complainant as the EMD and additional performance security in the department. The complainant has produced the cheque in the bank on 02-09-2024, which was given to him in the year 2021 as security. The transaction was with Chandra Prakash Singh, but he is not the proprietor of the complainant firm, and there was no transaction with the complainant firm. While replying to the notice, he made averments about the transaction between them and considering the disputed transaction, he stopped the 3 payment of the cheque. The pleading in the complaint memo is not sufficient to constitute the offence, and no details of the transaction are pleaded. There is no list of witnesses attached to the complaint memo, which is required for issuance of process as provided under Section 204(2) of the Cr.P.C., and no process can be issued against the accused. He would also submit that no detailed affidavit is filed along with the complaint as provided under Section 145 of the NI Act. The proceedings of the complaint case is a clear abuse of the process of the court as well as the law, and therefore, the petition may be allowed and the impugned order may be quashed/set aside. 5. Per contra, learned counsel for the respondent would submit that the submissions made by the learned counsel for the petitioner/accused relate to the factual dispute which is to be decided at the time of trial of the case. Whether or not the legally enforceable debt was there at the time of giving the cheque, whether the terms and conditions of the agreement were complied with by the parties, when the cheque was given and for what purpose it was given, are to be decided after leading evidence by the parties. The complainant has filed the required affidavit along with the complaint memo, and the list of witnesses has also been annexed to the complaint memo. There is no procedural defect in the complaint case, and the learned trial court, after satisfying the necessary requirements of the complaint case, registered the same. He would also submit that the affidavit under Section 145 of the NI Act is not required at the time of filing the complaint case, and the same is to be filed at the time of evidence. He would also submit that the necessary pleading for the offence of Section 138 of the NI Act is made in the complaint memo, and therefore, there is no grounds in the present petition to quash the proceeding of the complaint case, and the petition is liable to be dismissed. 6. I have heard learned counsel for the parties and perused the material produced by the respective parties in support of their submissions. 4 7. The say of the petitioner is that there was no legally enforceable debt at the time when the cheque is said to have been given to the complainant. In support of his submission, he would refer to the copy of the agreement dated 04-02-2021, which is filed along with the petition as Annexure P-2. From perusal of the copy of the agreement, it would reveal that there was an agreement with respect to a work contract under the Chief Minister’s Gram Sadak Yojna, and in para 6 of the agreement, it is mentioned that the second party to the agreement i.e. the accused/petitioner will give a cheque No. 084052 for Rs. 10,50,000/- to the first party to the contract i.e. the complainant/respondent and if the second party would fail to complete the work, the first party have the right to encash the said cheque. It is not mentioned in the agreement that the aforesaid cheque was handed over to him at that very moment, but it is mentioned that it will be given to him. Para 6 of the said agreement is relevant for consideration of the submission of the petitioner, which reads as under:- "यह कि, इस किकि दा हेतु प्रथम पक्षार द्वारा 10,50,000/- रूपये ी राशि बतौर ई. एम.डी. ए ं एडिडल परफाम$ सिसक्युरिरटी कि भाग में जमा ी गई है। उक्त राशि ी सुरक्षा े तौर पर किद्वतीय पक्षार, प्रथम पक्षार 10,50,000/-रू. ा चे क्रमां-084052 बैं- बैं ऑफ बड़ौदा ा खाता ं.-62530400000032 प्रदा रेगा। यह psd किद्वतीय पक्षार कि भाग द्वारा ाय7 पूर्ण7ता प्रमार्ण पत्र जारी र ाे पर प्रथम पक्षार ापस र देगा। किन्तु यकिद किद्वतीय पक्षार द्वारा किमा7र्ण ाय7 अधूरा छोड़ जाता है तो प्रथम पक्षार उक्त चे ो बैं से Hkqukdj उक्त राशि ो राजसात रे ा अडिधार होगा। सिजसमें किद्वतीय पक्षार ो ोई आपत्तिB ही है।" 8. From the complaint dated 26-06-2024 made by the petitioner/accused to the Superintendent of Police, Durg (Annexure P-4), the petitioner/accused had raised the disputed question of facts with respect to their business transaction, which was in consonance of their reply to the legal demand notice dated 25-09-2024 (Annexure P-6). 9. The “debt” has been considered by the Hon’ble Supreme Court in the matter of “Sunil Todi and Others v. State of Gujrat and Another”, 2022 (16) SCC 762, in which it has been held in para 29 that:- 5 29. Thus, the term "debt" also includes a sum of money promised to be paid on a future day by reason of a present obligation. A postdated cheque issued after the debt has been incurred would be covered by the definition of "debt". However, if the sum payable depends on a contingent event, then it takes the colour of a debt only after the contingency has occurred. Therefore, in the present case, a debt was incurred after the second respondent began supply of power for which payment was not made because of the non-acceptance of the LCs. The issue to be determined is whether Section 138 only covers a situation where there is an outstanding debt at the time of the drawing of the cheque or includes drawing of a cheque for a debt that is incurred before the cheque is encashed. 10. Further, in para 30 and 34 of its judgment of Sunil Todi (supra), the Hon’ble supreme Court has also considered the “debt of other liability”, in which it has been held that:- 30. The object of the NI Act is to enhance the acceptability of cheques and inculcate faith in the efficiency of negotiable instruments for transaction of business. The purpose of the provision would become otiose if the provision fis interpreted to exclude cases where debt is incurred after the drawing of the cheque but before its encashment. In Indus Airways, advance payments were made but since the purchase agreement was cancelled, there was no occasion of incurring any debt. The true purpose of Section 138 would not be fulfilled, if "debt or other liability" is interpreted to include only a debt that exists as on the date of drawing of the cheque. Moreover, Parliament has used the g expression "debt or other liability". The expression "or other liability" must have a meaning of its own, the legislature having used two distinct phrases. The expression "or other liability" has a content which is broader than "a debt" and cannot be equated with the latter. In the present case, the cheque was issued in close proximity with the commencement of power supply. The issuance of the cheque in the context of a commercial transaction must be 6 understood in the context of the business dealings. The issuance of the cheque was followed close on its heels by the supply of power. To hold that the cheque was not issued in the context of a liability which was being assumed by the company to pay for the dues towards power supplied would be to produce an outcome at odds with the business dealings. If the company were to fail to provide a satisfactory LC and yet consume power, the cheques were capable of being presented for the purpose of meeting the outstanding dues. 34. The submission which has been urged on behalf of the appellants, however, is that the fact that the cheques in the present case have been issued as a security is not in dispute since it stands admitted from the pleading of the second respondent in the suit instituted before the High Court of Madras. The legal requirement which Section 138 embodies is that a cheque must be drawn by a person for the payment of money to another "for the discharge, in whole or in part, of any debt or other liability". A cheque may be issued to facilitate a commercial transaction between the parties. Where, acting upon the underlying purpose, a commercial arrangement between the parties has fructified, as in the present case by the supply of electricity under a PSA, the presentation of the cheque upon the failure of the buyer to pay is a consequence which would be within the contemplation of the drawer. The cheque, in other words, would in such an instance mature for presentation and, in substance and in effect, is towards a legally enforceable debt or liability. This precisely is the situation in the present case which would negate the submissions of the appellants." 11. The petitioner/accused has filed the instant petition for quashing of the summoning order on the ground that there is no legally enforceable debt on the date of issuance of the cheque and the cheque is not issued for the discharge of any legally enforceable debt or liability. Whether the cheque was issued in discharge of any legally enforceable debt or not is a mixed question 7 of law and fact which is to be decided after trial of the case, and at this stage it cannot be concluded that no liability existed against the accused at the time of the alleged transaction. In the matter of S. Natrajan v. Sama Dharman and Another, 2021 (6) SCC 413, their lordship of the Hon’ble Apex Court has held that:- "8. In this connection, we may usefully refer to a judgment of this Court in A.V. Murthy v. B.S. Nagabasavanna where the accused had alleged that the cheque issued by him in favour of the complainant in respect of sum advanced to the accused by the complainant four years ago was dishonoured by the bank for the 1 (2002) 2 SCC 642 reasons "account closed". The Magistrate had issued summons to the accused. The Sessions Court quashed the proceedings on the ground that the alleged debt was barred by limitation at the time of issuance of cheque and, therefore, there was no legally enforceable debt or liability against the accused under the Explanation to Section 138 of the NI Act and, therefore, the complaint was not maintainable. While dealing with the challenge to this order, this Court observed that under Section 118 of the NI Act, there is a presumption that until the contrary is proved, every negotiable instrument was drawn for consideration. This Court further observed that Section 139 of the NI Act specifically notes 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 of the NI Act for discharge, in whole or in part, of any debt or other liability. This Court further observed that under sub- Section (3) of Section 25 of the Contract Act, a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially S. Natarajan vs Sama Dharman on 15 July, 2014 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, is a valid contract. Referring to the facts before it, this Court observed that the complainant therein had submitted his balance sheet, prepared for every year subsequent to the loan advanced by the complainant and had shown the amount as deposits from friends. This Court noticed that the relevant balance sheet is also produced in the Court. This Court observed that if the amount borrowed by the accused therein is 8 shown in the balance sheet, it may amount to acknowledgement and the creditor might have a fresh period of limitation from the date on which the acknowledgement was made. After highlighting further facts of the case, this Court held that at this stage of proceedings, to say that the cheque drawn by the accused was in respect of a debt or liability, which was not legally enforceable, was clearly illegal and erroneous. In the circumstances, this Court set aside the order passed by the High Court upholding the Sessions Court’s order quashing the entire proceedings on the ground that the debt or liability is barred by limitation and, hence, the complaint was not maintainable. It is, therefore, clear that the contention urged by the appellant herein can be examined only during trial since it involves examination of facts. 9. In Rangappa v. Sri Mohan2, the legal question before this Court pertained to the proper interpretation of Section 139 of the NI Act which shifts the burden of proof on to the accused in cheque 2 (2010) 11 SCC 441 bouncing cases. This Court observed that the presumption mandated by Section 139 of the NI Act includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. This Court further observed that Section 139 of the NI Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. This Court clarified that the reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. This Court, then, explained the manner in which this statutory presumption can be rebutted. Thus, in cheque bouncing cases, the initial presumption incorporated in Section 139 of the NI Act favours the complainant and the accused can rebut the said presumption and discharge the reverse onus by adducing evidence." 12. The Hon'ble Supreme Court in the matter of Krishna Janardhan Bhat v. Dattatraya G. Hegde., (2008) 4 SCC 54 in para 29 and 30 of its judgment has held that:- "29. Section 138 of the Act has three ingredients, viz.: (i) that there is a legally enforceable debt; 9 (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (iii) that the cheque so issued had been returned due to insufficiency of funds. 30. The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the 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." 13. With respect to the other submission of the petitioner that the list of witnesses is not attached to the complaint memo as required under Section 204(2) of the Cr.P.C., the petitioner has filed a copy of the complaint memo along with the petition as annexure P-7 at page No. 24. At the end of the complaint memo there is no list of witnesses attached in the petition. On 25-04-2025, at the time of hearing of the matter, the learned counsel for the respondent submitted that they have attached the list of witnesses along with the complaint memo, and then this court had directed the learned counsel for the respondent/complainant to file a copy of the same before this court. In compliance of the order dated 25-04-2025, learned counsel for the respondent had filed a certified copy of the list of witnesses, which is filed along with the complaint memo, through the covering memo dated 05-05- 2025. It transpires that the consolidated list of documents and the list of witnesses have been filed along with the complaint memo before the learned trial court. The relevant part of the said document is necessary to reproduce here to avoid the controversy which reads as under:- List of Documents in the support of plaint by complainant 1. Legal notice sent by Complainant Advocate 10 2. Photo copy of postal receipts 3. Photocopy of cheques & Dishonour Memo 4. LIST OF WITNESSES Applicant self Other the Hon’ble court may think fit as per the case.. 14. From the above document, it is quite vivid that the list of witnesses has also been filed along with the complaint memo. One cannot direct the complainant to produce the number of witnesses in support of his case. There is no specific format for list of witnesses, which is to be appended along with the complaint. If he disclosed that he himself is to be examined as the complainant witness, he cannot be compelled to examine other witnesses. Furthermore, he mentioned that with the leave of the court, as per the case, he may examine the witnesses. The jurisdiction of the Magistrate under Section 204(1) of Cr.P.C. to issue a summon or a warrant in the first instance, as the case may be, if he satisfied that there was sufficient ground for proceeding cannot be taken away by the failure on the part of the complainant to file a list of witnesses. Although in the present case the list of witnesses has been attached with the complaint memo but even if non- compliance of provisions of Section 204(2) of Cr.P.C. does not affect the jurisdiction of the Magistrate either to issue process or to try the case. The stage of the proceeding is relevant to determine the prejudice, if any, caused to the accused. in the matter of “Pramila Mahesh Shah v. Employees’ State Insurance Corporation, Nagpur and Another, 2001 SCC Online Bom. 909’, it has been held by Bombay High Court that:- "29. Coming to section 204(2) of Criminal Procedure Code, I must say that the non-compliance of this provision does not affect the jurisdiction of the Magistrate either to issue process or to try the case. This view has been taken by the Apex Court in Noorkhan vs. State of Rajasthan, Madhaorao Pandurang vs. Yeshwant, Abdullah Bhat vs. Ghulam Mohd. Wani; and Shashi Nair vs. R. C. Mehta 11 (supra). The procedural laws are hand maid of justice and the question of prejudice is of paramount consideration in respect of breach of procedural provisions. Therefore, even if it was to be held that the provisions of section 204(2) are mandatory, that, by itself, would not vitiate the issue of process or the jurisdiction of the Court and where the matter is at the initial stage, directions can be given to furnish the copy of list of witnesses, if any, before the proceedings actually commenced. The stage of the proceedings is relevant to determine the prejudice, if any, caused to the accused. In the case under consideration, the substantive proceedings had not yet started. Therefore, in the circumstances, directions to the complainant to supply copy of witnesses, if any, within a period of four weeks from the receipt of the copy of the order by the trial Court would be considered as sufficient compliance of section 204(2) of Criminal Procedure Code, 1973." 15. Another ground of affidavit is raised by the learned counsel for the petitioner/accused that the detailed affidavit is not filed along with the complaint memo, and therefore, there is a material defect in the summoning order passed by the learned trial court. The cognizance of the offence is defined in Section 142 of the NI Act, which is necessary to quote here, which is as below:- "142. Cognizance of offences.[(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had 12 sufficient cause for not making a complaint within such period.] (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.] (2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,- (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation. For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.]" 16. The contention of the learned counsel for the petitioner is that a special provision contained in the NI Act, with regard to taking cognizance as provided under Section 142 of the NI Act, and with regard to taking evidence on affidavit as provided under Section 145 of the NI Act, render inapplicable the provisions of Section 200 of the Cr.P.C. and the complainant is required to be filed the detailed affidavit in support of his complaint at the time of filing of the same itself, now needs to be examined. From the provisions of Section 142(1)(a) of the NI Act, it is amply clear that the complaint should have been made in writing by the payee or the holder of the cheque in due course. In the present case, the complaint filed by the complainant is supported by an affidavit in which is has been sworn that the contents of the complaint memo is true and correct. The contents of the affidavit is also relevant here to be reproduced which reads as under :- 13 "1. That my particular are mention above. 2. That there is liability of Rs. 10,50,000/- (Ten lakhs fifty thousand only) of M/s Singh Services, Mahesh Nagar Mr. Nitesh Singh (Proprietor) whose details are mentioned in Plaint for that I have stated one complaint case against Nitesh Singh Under section 138 N Act. 1881. 3. That the enclosed plaint (Coloum no. I to Coloum no. 06) has filed by me. 4. That, this affidavit is submitted in the support of enclosed plaint." 17. The affidavit required under Section 145 of the NI Act is required in the form of an examination-in-chief is not the affidavit that is filed at the time of filing of the complaint under Section 142 of the NI Act or Section 200 of the Cr.P.C. Swearing the contents of the complaint memo by a concise affidavit at the time of registration of the complaint case and issuing the process to the accused would be sufficient compliance of Section 142 of the NI Act and/or Section 200 of the Cr.P.C. the detailed affidavit as required under Section 145 of the NI Act, in the opinion of this court, is to be required at the time of recording evidence of the parties in the form of examination-in-chief of the complainant’s witnesses. Therefore, this court is not impressed upon the arguments of the learned counsel for the petitioner/accused on this issue. 18. For the foregoing considerations, this court does not find any ground warranting interference with the order dated 18-10-2024 passed by the learned trial court registering the complaint case and issuing process to the petitioner/accused. 19. Accordingly, the present Criminal Miscellaneous Petition is liable to be and hereby dismissed. Sd/- (Ravindra Kumar Agrawal) Judge Alok