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Patna High Court

Sanjeev KumarversusState Of Bihar and Anr

Decided
Disposal
DISMISSED

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

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.
Patna High Court CR. MISC. No.50805 of 2018 dt.06-02-2026
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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
             Patna High Court CR. MISC. No.50805 of 2018 dt.06-02-2026
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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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