Patna High Court
Sanjeev KumarversusState Of Bihar and Anr
- Decided
- Disposal
- DISMISSED
- Bench
- SUNIL DUTTA MISHRA
Holding
The High Court dismissed the petition, holding that the magistrate correctly took cognizance as the complaint disclosed a prima facie case and the proceeding should not be quashed at this stage.
Summary
The petitioner Sanjeev Kumar was charged under Section 138 of the Negotiable Instruments Act for issuing a cheque of Rs.95,000 that was dishonoured. The complainant alleged a loan of Rs.1,00,000, issuance of the cheque for discharge of the debt, and that a statutory legal notice was served, which the petitioner denied. The Judicial Magistrate took cognizance and ordered summons, which the petitioner challenged, claiming the mandatory notice requirement was not fulfilled and that the matter was essentially civil. The High Court held that at the stage of taking cognizance the magistrate need only be satisfied of a prima facie case and that the presumption under Section 139 bars a pre‑trial enquiry into disputed facts. Consequently, the court dismissed the petition to quash the proceeding, emphasizing that such matters must be decided at trial.
Issues considered
- Whether the magistrate erred in taking cognizance of an offence under Section 138 NI Act without compliance of the statutory notice requirement.
- Whether the High Court can quash a criminal complaint under Section 482 CrPC at the pre‑trial stage when factual disputes exist.
- Whether the presumption under Section 139 of the NI Act precludes a detailed pre‑trial examination of the cheque's purpose.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 482
- Negotiable Instruments Act, 1881 — s. 138, 139
Subjects
- Section 138 NI Act
- Cheque bounce
- Quashing of criminal proceedings
- Section 482 CrPC
- Presumption under Section 139
- Cognizance
- Legal notice
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.50805 of 2018
Arising Out of PS. Case No.-2065 Year-2013 Thana- VAISALI COMPLAINT CASE
District- Vaishali
======================================================
Sanjeev Kumar S/o Sri Sunil Kumar Jaiswal Das, Residents of Vill.- Mahnar,
P.S.- Mahnar, Distt.- Vaishali, at present Thayrocare Janch Ghar, Navin
Cinema Road, Hajipur, P.S.- Hajipur Town, Distt.- Vaishali.
... ... Petitioner/s
Versus
1. State of Bihar.
2. Sanjay Singh S/o Hariballav Prasad Singh, R/o Vill.- Mustafapur, P.O.-
Maniyarpur, P.S.- Bidupur, Distt.- Vaishali.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Mahendra Thakur, Advocate
For the Opposite Party/s : Mr. Pradeep Narain Kumar, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
C.A.V. JUDGMENT
Date : 06-02-2026
1. Heard learned counsel for the petitioner as well as
the learned A.P.P. for the State.
2. The present application has been filed on behalf
of the petitioner for quashing the order dated 14.11.2014 passed
by the learned Judicial Magistrate 1st Class, Vaishali at Hajipur
(hereinafter referred to as ‘Magistrate’) in connection with
Complaint Case No. C1-2065 of 2013 wherein the learned Trial
Court took cognizance of the offence under Section 138 of the
Negotiable Instruments Act, 1881 (hereinafter referred to as ‘N.I.
Act’) against the petitioner and accordingly, directed to issue
process.
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3. The fact of the case, in brief, is that the complaint
was instituted by Opposite Party No.2 alleging that on
11.02.2013 the petitioner approached him for a loan of
Rs.1,00,000/-, out of which a sum of Rs.95,000/- was allegedly
advanced in the presence of witnesses, and in discharge of the
said liability, a cheque dated 11.03.2013 for Rs.95,000/- was
issued by the petitioner. It is further alleged that upon
presentation, the cheque was dishonoured due to insufficiency of
funds and, thereafter, a legal notice dated 22.05.2013 was issued
to the petitioner, who failed to make payment within the statutory
period. The complainant has been examined on oath and two
inquiry witnesses have also been examined. Learned Magistrate
on perusal of record found sufficient materials available on
record to proceed with the case and recorded that a prima facie
case is made out against the petitioner and directed to issue
summons upon him vide impugned order dated 14.11.2014.
Aggrieved by the impugned order of cognizance, the petitioner
has approached this Court by filing the present petition.
4. Learned counsel for the petitioner has assailed the
impugned order primarily on the ground that the mandatory
requirements of Section 138 of the N.I. Act were not fulfilled
prior to institution of the complaint. It is submitted that no
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statutory legal notice was ever served upon the petitioner and the
same was not filed along with the complaint petition. Neither the
complaint petition nor the order taking cognizance reflect
compliance with the requirement of issuance and service of
notice. It is further submitted that the learned Magistrate has
taken cognizance in a mechanical manner without proper
application of judicial mind to the materials on record. Moreover,
it is submitted that there existed a joint business relationship
between the petitioner and Opposite Party No.2 and certain
cheques of the petitioner were lying with the Opposite Party
No.2, which have been misused to give a criminal colour to what
is essentially a civil dispute. It is further submitted that the
petitioner never received any amount from the Opposite Party
No.2 and never issued the cheque in question towards discharge
of any legally enforceable debt or liability. Therefore, it is lastly
submitted that continuation of the criminal proceeding would
amount to abuse of the process of the Court and the impugned
order is liable to be quashed.
5. Per contra, learned A.P.P. for the State submitted
that the impugned order taking cognizance of the offence under
Section 138 of the N.I. Act does not suffer from any apparent
illegality warranting interference under Section 482 of the Code
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of Criminal Procedure. It is submitted that at the stage of taking
cognizance, the learned Magistrate is only required to prima
facie satisfy himself regarding the existence of ingredients of the
alleged offence and a detailed appreciation of evidence is neither
required nor permissible. Learned A.P.P. further submitted that
the defence raised by the petitioner relates to disputed questions
of fact, which can be adjudicated only during trial. It is also
submitted that no case is made out for exercise of inherent
jurisdiction of this Court to quash the criminal proceeding at the
threshold. Thus, the present petition shall be dismissed.
6. The law with respect to quashing of criminal
proceeding is now well settled that while considering a prayer to
quash the criminal complaint and the consequential proceedings
at the threshold, the Court is required to examine whether the
allegations made in the complaint along with materials in support
thereof make out a prima facie case to proceed against the
accused or not. The reference to the same has been made by the
Hon’ble Apex Court in various judgments including State of
Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335 and
Pradeep Kumar Kesarwani v. State of Uttar Pradesh & Anr.,
reported in 2025 SCC OnLine SC 1947.
7. The Hon’ble Supreme Court in Sri Om Sales v.
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Abhay Kumar @ Abhay Patel & Anr. reported in 2025 SCC
OnLine SC 2897 observed that under Section 482 Cr.P.C., to test,
whether cheque was issued for discharge of any debt or liability
is unwarranted because under Section 139 of the N.I. Act, there is
presumption 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 and this presumption can
be rebutted by evidence led in trial. The Hon’ble Apex Court in
the aforesaid judgment has also laid down guidelines with
respect to quashing of a proceeding in cases under the N.I. Act in
para 13 to 17 as under:
“13. However, the High Court, in its
jurisdiction under Section 482,
proceeded to test whether the cheque
was issued for the discharge, in whole
or in part, of any debt or other liability.
In our view, such an exercise was
unwarranted because, under Section
139 of the N.I. Act, there is a
presumption 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. This
presumption can be rebutted by
evidence led in trial. A fortiori, the said
issue can appropriately be decided
either at the trial, or later, upon
conclusion of trial, by the
appellate/revisional court.
14. In Maruti Udyog Ltd. v. Narender,
this Court held that a presumption
must be drawn that the holder of the
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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
and, therefore, the High Court was not
justified in entertaining and accepting
the plea of the accused at the initial
stage of the proceedings and quash the
complaint.
15. Likewise, in Rangappa v. Sri
Mohan, it was held that the
presumption mandated by Section 139
of the N.I. Act includes the existence of
a legally enforceable debt or liability.
It was observed that such a
presumption is rebuttable, and the
accused must raise its defense in the
trial.
16. In Rajeshbhai Muljibhai Patel v.
State of Gujarat, it was held that the
High Court should not quash the
criminal complaint under Section 138
of N.I. Act by going into disputed
questions of fact regarding the cheque
in question being issued for the
discharge of debt or liability. Moreso,
when Section 139 of the N.I. Act raises
a statutory presumption as regards the
cheque being issued for discharge of
debt or liability.
17. In Rathish Babu Unnikrishnan v.
State (NCT of Delhi), this Court held
that when there is a legal presumption
under Section 139 of N.I. Act, it would
not be judicious to carry out a detailed
enquiry on a disputed question of fact
at a pre-trial stage to quash the
complaint. The relevant observations in
the judgment are extracted below:
“17. The proposition of law as set out
above makes it abundantly clear that
the court should be slow to grant the
relief of quashing a complaint at a pre-
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trial stage, when the factual
controversy is in the realm of
possibility particularly because of the
legal presumption, as in this matter.
What is also of note is that the factual
defense without having to adduce any
evidence need to be of an
unimpeachable quality, so as to
altogether disprove the allegations
made in the complaint.
18. The consequences of scuttling the
criminal process at a pretrial stage can
be grave and irreparable. Quashing
proceedings at preliminary stages will
result in finality without the parties
having had an opportunity to adduce
evidence and the consequence then is
that the proper forum i.e.,the trial court
is ousted from weighing the material
evidence. If this is allowed, the accused
may be given an unmerited advantage
in the criminal process. Also, because
of the legal presumption, when the
cheque and the signature are not
disputed by the appellant, the balance
of convenience at this stage is in
favor of the complainant/prosecution,
as the accused will have the
opportunity to adduce defense evidence
during the trial, to rebut the
presumption.
19. Situated thus, to non-suit the
complainant, at the stage of the
summoning order, when the factual
controversy is yet to be canvassed and
considered by the trial court will not in
our opinion be judicious. Based upon a
prima facie impression, an element of
criminality cannot entirely be ruled out
here subject to the determination by the
trial court. Therefore, when the
proceedings are at a nascent stage,
scuttling of the criminal process is not
merited.”
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8. In the present case, mere perusal of the complaint
petition reveals specific assertions regarding advancement of
loan, issuance of cheque towards discharge of liability, dishonour
of the cheque on account of insufficiency of funds, and issuance
of statutory legal notice within the prescribed period and its
service on the petitioner. The Opposite Party No.2 has
categorically pleaded that despite receipt of notice, the drawer
failed to make payment within the statutory time. At the stage of
taking cognizance, the learned Magistrate is required only to
ascertain whether the allegations, taken at face value, disclose the
commission of an offence, and not to examine the truthfulness or
otherwise of the defence put forth by the accused. The contention
raised on behalf of the petitioner that no legal notice was served
upon them, or that the cheque was not issued in discharge of a
legally enforceable debt, involves disputed questions of fact
which cannot be adjudicated in proceedings under Section 482
Cr.P.C. The complaint discloses the foundational facts necessary
for proceeding under Section 138 of the N.I. Act. However, all
the matters requiring evidence and cross-examination and can be
appropriately decided only during trial. Therefore, the impugned
order of cognizance does not suffer from any patent illegality,
perversity, or jurisdictional error warranting interference by this
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Court in exercise of its inherent powers. Interference at this stage
would amount to stifling a legitimate prosecution at its inception,
which is impermissible in law.
9. Accordingly, the present application stands
dismissed.
(Sunil Dutta Mishra, J)
Ritik/-
AFR/NAFR NAFR
CAV DATE 31.01.2026
Uploading Date 06.02.2026
Transmission Date 06.02.2026
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