Saroj Pandey vs Govt. of NCT of Delhi and Ors. - “In the instant case the substance of establishing the appellant’s day-to-day involvement in the affairs of the Company is that she had signed the Board Resolutions. . . . . . This, however, does not in any manner mean that each and every member of the Board of Directors is aware of all decisions taken in the everyday transactions that are involved in running a business concern. That apart, there is not even as much as a whisper of direct allegation against the present appellant in the complaint made which, as per the judgment referred to immediately hereinabove is the sine qua non for Section 141 N.I. Act to be attracted – “accused was in charge of, and responsible for the conduct of business of the company.”

 SCI (2026.04.07) in Saroj Pandey vs Govt. of  NCT of Delhi and Ors. [2026 INSC 324, Criminal Appeal NO….. OF 2026 (@ SLP (CRL.) NO.21322 of 2025)] held that;- 

• “In the instant case the substance of establishing the appellant’s day-to-day involvement in the affairs of the Company is that she had signed the Board Resolutions. . . . . . This, however, does not in any manner mean that each and every member of the Board of Directors is aware of all decisions taken in the everyday transactions that are involved in running a business concern. That apart, there is not even as much as a whisper of direct allegation against the present appellant in the complaint made which, as per the judgment referred to immediately hereinabove is the sine qua non for Section 141 N.I. Act to be attracted – “accused was in charge of, and responsible for the conduct of business of the company.”

Excerpts of the Order;

Leave Granted.

# 2. The appellant is aggrieved by the High Court of Delhi’s refusal to exercise its inherent powers under Section 482, Code of Criminal Procedure, 1973, in terms of order dated 7th August 2025 passed and Criminal MC No.8110/2023 and Criminal M.A. 14:22:29 to quash the summoning order issued by the Metropolitan Magistrate, in connection with complaint CC NI Act 12597/2021 under Sections 138 and 142 of the Negotiable Instruments Act, 18811, as confirmed as a consequence of the dismissal of CR No. 115/2023 by the Additional Sessions Judge, Dwarka Courts .

# 3. The facts of the matter are that the appellant is one of the Directors of the accused Company namely Projtech Engineering Private Limited. The accused Company issued cheques, three in number, all dated 20th April 2021worth 15 lacs, 20 lacs and 15 lacs each, as payment for supply of iron and steel. Despite confirmation from the accused Company of availability of funds at the time of deposit of cheques, the same were returned unpaid. The reason therefor was:

• “DRAWERS SIGNATURES DIFFERS AND ALTERNATIONS/CORRECTIONS ON INSTRUMENTS OTHER THAN DATE” 

Legal notice in this connection was sent on 12th May 2021 through counsel and on 18th May 2021, through ‘speed post’. The proceedings under the N.I. Act were initiated on 25th June 2021. By order dated 23rd September 2021, MM(NI-Act) Dwarka Courts, New Delhi, issued summons and put up the matter for appearance of the accused on 15th December 2021.

# 4. In revision proceedings, the present appellant was the second revisionist. The ground for rejecting the revision was that she was the Director of the Company and she had also signed a  Board Resolution which, as per the Court, ipso facto evidenced a fact that she was involved in the day-to-day management of the affairs of the Company.

# 5. In the High Court, similar reasoning was adopted. Moreover, it was observed that when revision has been preferred a petition under Section 482 CrPC on the same grounds, is circumscribed to a much narrower jurisdiction. The petition was as such dismissed.

# 6. The law with regard to prosecutions under Section 138 of the N.I. Act is generally well settled. This Court has, on numerous occasions considered the scope of prosecutions thereunder as also under Section 141 of the N.I. Act. (See: N. Vijay Kumar v. Vishwanath Rao N.) The only aspect that we have to consider is whether the appellant is indeed conversant with the day-to-day management of the Company, thereby justifying the issuance of summons to her. Section 141 of N.I. Act reads as under:

• ”141. Offences by companies.—(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

• Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his  knowledge, or that he had exercised all due diligence to prevent the commission of such offence: Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financialcorporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.

• (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

• Explanation.—For the purposes of this section, —

• (a) “company” means any body corporate and includes a firm or other association of individuals; and

• (b) “director”, in relation to a firm, means a partner in the firm.”

# 7. A bench of three judges in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, crystallised the law on the point. The relevant extract is as follows:

• “19. In view of the above discussion, our answers to the questions posed in the reference are 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.

• ... … …

”In Gunmala Sales (P) Ltd. v. Anu Mehta4, the Court concluded as follows regarding proceedings under Section 138 NI Act:

• “34. We may summarise our conclusions as follows:

• 34.1. Once in a complaint filed under Section 138 read with Section 141 of the NI Act the basic averment is made that the Director was in charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed, the Magistrate can issue process against such Director.

• … … … 

• 34.3. In the facts of a given case, on an overall reading of the complaint, the High Court may, despite the presence of the basic averment, quash the complaint because of the absence of more particulars about the role of the Director in the complaint. It may do so having come across some unimpeachable, incontrovertible evidence which is beyond suspicion or doubt or totally acceptable circumstances which may clearly indicate that the Director could not have been concerned with the issuance of cheques and asking him to stand the trial would be abuse of process of court. Despite the presence of basic  averment, it may come to a conclusion that no case is made out against the Director. Take for instance a case of a Director suffering from a terminal illness who was bedridden at the relevant time or a Director who had resigned long before issuance of cheques. In such cases, if the High Court is convinced that prosecuting such a Director is merely an arm- twisting tactics, the High Court may quash the proceedings. It bears repetition to state that to establish such case unimpeachable, incontrovertible evidence which is beyond suspicion or doubt or some totally acceptable circumstances will have to be brought to the notice of the High Court. Such cases may be few and far between but the possibility of such a case being there cannot be ruled out. In the absence of such evidence or circumstances, complaint cannot be quashed.

• 34.4. No restriction can be placed on the High Court's powers under Section 482 of the Code. The High Court always uses and must use this power sparingly and with great circumspection to prevent inter alia the abuse of the process of the court. There are no fixed formulae to be followed by the High Court in this regard and the exercise of this power depends upon the facts and circumstances of each case. The High Court at that stage does not conduct a mini trial or roving inquiry, but nothing prevents it from taking unimpeachable evidence or totally acceptable circumstances into account which may lead it to conclude that no trial is necessary qua a particular Director.” [See also: Hitesh Verma v. Health Care at Home (India) (P) Ltd.,; K.S. Mehta v. Morgan Securities & Credits (P) Ltd.]

# 8. In the instant case the substance of establishing the appellant’s day-to-day involvement in the affairs of the Company is that she had signed the Board Resolutions. To say the least, the same is not inspiring in confidence because a Board Resolution is a document that is signed by the members of the Board of Directors for decisions taken or conclusions arrived at for matters placed before the Board for consideration and decision. This may be inter alia regarding hiring of personnel at management levels, acquisition or liquidation of assets affecting the overall position of the assets and liabilities of the Company or any other such major directional issue. This, however, does not in any manner mean that each and every member of the Board of Directors is aware of all decisions taken in the everyday transactions that are involved in running a business concern. That apart, there is not even as much as a whisper of direct allegation against the present appellant in the complaint made which, as per the judgment referred to immediately hereinabove is the sine qua non for Section 141 N.I. Act to be attracted – “accused was in charge of, and responsible for the conduct of business of the company.”

# 9. As an aside, we consider the statement of law expressed by the High Court to the effect that once a petition under Section 397 Cr.PC has been entertained, irrespective of its end result, a subsequent petition under Section 482 Cr.PC on the same grounds limits the jurisdiction of the latter and in ordinary course matters, such as the present one, are liable to be dismissed on this short ground alone.

# 10. This question was determined by a bench of three judges in Krishnan & Anr. v. Krishnaveni & Anr7 with reference to earlier decision of this Court in Madhu Limaye v. State of Maharashtra8 and V.C Shukla v. State through CBI9 as follows:

• “14. In view of the above discussion, we hold that though the revision before the High Court under sub- section (1) of Section 397 is prohibited by sub- section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below…” Holding to a similar effect has been given in Dhariwal Tobacco Products Ltd. v. State of Maharashtra10, which has been followed and affirmed in Prabhu Chawla v. State of Rajasthan11. The relevant extract of the former is as follows:

• “6. Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. This Court in a large number of decisions beginning from R.P. Kapur v. State of Punjab [AIR 1960 SC 866] to Som Mittal v. Govt. of Karnataka [(2008) 3 SCC 574 : (2008) 2 SCC (Cri) 1 : (2008) 1 SCC (L&S) 910] has laid down the criterion for entertaining an application under Section 482. Only because a revision petition is maintainable, the same by itself, in our considered opinion, would not constitute a bar for entertaining an application under Section 482 of the Code. Even where a revision application is barred, as for example the remedy by way of Section 115 of the Code of Civil Procedure, 1908, this Court has held that the remedies under Articles 226/227 of the Constitution of India would be available. (See Surya Dev Rai v. Ram Chander Rai [(2003) 6 SCC 675] Even in cases where a second revision before the High Court after dismissal of the first one by the Court of Session is barred under Section 397(2) [Ed.: The intended provision seems to be Section 397(3). In this regard See (1) Krishnan v. Krishnaveni, [(1997) 4 SCC 241 : 1997 SCC (Cri) 544]; (2) Puran v. Rambilas, [(2001) 6 SCC 338 : 2001 SCC (Cri) 1124]; (3) Kailash Verma v. Punjab State Civil Supplies Corpn., [(2005) 2 SCC 571 : 2005 SCC (Cri) 538.] of the Code, the inherent power of the Court has been held to be available.

• 7. …The inherent power of the High Court is not conferred by statute but has merely been saved thereunder. It is, thus, difficult to conceive that the jurisdiction of the High Court would be held to be barred only because the revisional jurisdiction could also be availed of. (See Krishnan v. Krishnaveni [(1997) 4 SCC 241 :1997 SCC (Cri) 544])”  

# 11. In that view of the matter, we also find fault with the statement of law as stated by the High Court in the impugned judgment and set aside the same on both the counts. The proceedings against the instant appellant namely Saroj Pandey, shall stand quashed and set aside. It is clarified that any observation made herein is for the limited purpose of consideration of her case only and have no bearing or impact on the trial of the co-accused persons. The appeal is allowed to aforesaid extent.

Pending application(s), if any, shall stand disposed of..

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Renuka vs The State Of Maharashtra - Suffice it to observe that even in the said decision, it has been held that disputed questions as regards existence of outstanding liability are questions of fact that have to be determined at the trial on the basis of evidence.

 SCI (2026.04.07) in Renuka vs The State Of Maharashtra [202 INSC 327, Criminal Appeal NO….. OF 2026 (@ SLP (CRL.) NO.7829 OF 2023)] held that;- 

• Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that 'unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability'.

• As soon as the complainant discharges the burden to  prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused.

• The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.”

• In such a situation, when the basic ingredients of Section 138 stand duly satisfied and the statutory presumption under Section 139 gets triggered, coming to a conclusion that the cheque was not issued for a legally enforceable debt at the pre-trial stage itself without granting an opportunity to the complainant to substantiate her case by leading evidence would amount to ignoring the statutory presumption that the cheque had been issued for a legally enforceable debt or liability.

• Suffice it to observe that even in the said decision, it has been held that disputed questions as regards existence of outstanding liability are questions of fact that have to be determined at the trial on the basis of evidence.

Excerpts of the Order;

# 1. Leave granted.

# 2. On a complaint filed under Section 138 of the Negotiable Instruments Act, 1881 [For short, the N.I. Act], learned Metropolitan Magistrate on being satisfied that there was prima-facie material to proceed against the second respondent issued process on 17th June 2022. The second respondent  for challenging the said order. The Sessions Court was of the view that on the date of issuance of the cheque in question, there was no legally enforceable debt to be satisfied by the drawer. By the order dated 30 th December 2022, it set aside the order passed by the learned Metropolitan Magistrate issuing process. The complainant approached the High Court of Bombay by filing a writ petition under Article 227 of the Constitution of India and challenged the order passed by the Sessions Court. The learned Single Judge, however, dismissed the writ petition observing that no error of jurisdiction was found in the impugned order. Being aggrieved, the complainant has challenged the aforesaid orders in this Criminal Appeal.

# 3. Shorn of necessary details, the facts relevant for considering the challenge as raised are that it is the case of the appellant that she had some disputes with her husband, Mr. Ashwin Natwarlal Sheth in the matter of alleged illegal and fraudulent transfer of shares pertaining to Sheth Developers and Realtors (India) Limited and Sheth Developers Private Limited. She had  filed various complaints after which her husband commenced negotiations for amicable settlement of the disputes. On 12th January 2022, a final draft settlement agreement was finalised and drawn up between the parties. One of the terms of the settlement was that the appellant’s husband would gift to the appellant the fifth, sixth and seventh floor premises of Natwar Bungalow along with interest in a plot located in a Co-operative Housing Society. He also agreed to pay the appellant a sum of ₹50 crores on executing a Declaration-cum- Indemnity document so as to withdraw the complaints filed by her against her husband. With a view to safeguard the interest of the appellant, the second respondent, who was a close friend of the appellant’s husband, agreed to act as a mediator and to keep the amount of ₹50 crores in an escrow account till the actual payment was made by the appellant’s husband. Accordingly, on 12th January 2022, the second respondent issued Cheque No.080261 for an amount of ₹50 crores in favour of the appellant. The appellant claims to have signed the document titled as Declaration- cum-Indemnity on 13th January 2022. It is the further case of the appellant that the sale of shares of the concerned entity was completed contrary to the settlement agreement and the appellant’s husband received the sale consideration. The appellant accordingly deposited the cheque that had been issued by the second respondent for encashment. However, on 06 th April 2022, the said cheque was dishonoured and returned with the remark ‘payment stopped by drawer’. The appellant, on 20th April 2022, issued a notice under Section 138 of the N.I. Act to the second respondent. The said notice was replied by the second respondent on 04 th May 2022, denying any liability to make such payment. The appellant gave her further reply to the second respondent and again called upon him to make the necessary payment. Since no further steps were taken by the second respondent, the appellant on 16 th June 2022 filed a complaint against the second respondent under Section 138 of the N.I. Act.

# 4. Mr. Mukul Rohatgi, learned Senior Advocate for the appellant submitted that the Sessions Court erred in setting aside the order passed by the learned Metropolitan Magistrate issuing process on the premise that the dishonoured cheque had been issued for a debt that was not legally enforceable. According to him, on a plain reading of the complaint filed by the appellant under Section 138 of the N.I. Act coupled with the undisputed position as regards the issuance of the cheque by the second respondent, its valid presentation, its subsequent dishonour, issuance of the statutory notice and failure on the part of the second respondent to comply with the statutory notice were the only relevant considerations at the stage of issuance of process in the complaint. In other words, it was urged that the presumption under Section 139 of the N.I. Act that operated in favour of the payee could be dislodged by the drawer of the cheque only during the course of trial and not at the pre-trial stage. When the basic ingredients for making out an offence under Section 138 of the N.I. Act had been made out and process had been issued by the learned Metropolitan Magistrate, scuttling the proceedings at this stage was unjustified. To substantiate this contention, reliance was placed on the decision in Sunil Todi and others Vs. State of Gujarat and another [2021 INSC 823] by urging that the Sessions Court had misread the said judgment. It was, thus, submitted that the Sessions Court was not justified in coming to the conclusion that the cheque in question had not been issued for discharge of any legal liability. Such a finding could be rendered only at the trial and not on the basis of the statements made during the course of proceedings challenging the issuance of process. He, therefore, submitted that the impugned orders be set aside and the complaint be restored for its adjudication on merits.

# 5. On the other hand, Dr. A. M. Singhvi, learned Senior Advocate for the second respondent supported the impugned orders and opposed the contentions raised on behalf of the appellant. He submitted that both the Courts were justified in coming to the conclusion that the cheque in question had not been shown to have been issued towards the discharge of any legally enforceable debt. The document dated 12th January 2022, which was  in the form of a settlement agreement, was admittedly not signed by the second respondent. There was no concluded agreement as such and, therefore, the second respondent could not be bound by the statements made in that agreement. The liability under the cheque issued by the second respondent would arise only after the agreement between the parties was complete. The Courts were justified in relying upon the decision in Sunil Todi (supra) wherein it was held that where the payment of debt was dependent on the happening of an event which never occurred, there would be no legally recoverable liability to be satisfied. In view of this position on record, no useful purpose would be served by continuing the proceedings under Section 138 of the N.I. Act as it would amount to an abuse of the process of law. It was, thus, submitted that the complaint having been rightly dismissed by the learned Sessions Judge, which order was upheld by the High Court, no interference therein was called for. He, therefore, urged that the appeal ought to be dismissed.

# 6. We have heard the learned Senior Advocates appearing for the parties at length and we have also perused the relevant documentary material on record. Having given due consideration to the rival submissions, we are of the view that the Sessions Court as well as the High Court were not justified in coming to the conclusion that the complaint as filed by the appellant under Section 138 of the N.I. Act was liable to be dismissed at the pre- trial stage on the ground that the cheque issued by the second respondent was not towards any legally enforceable debt.

# 7. Perusal of the complaint filed by the appellant under Section 138 of the N.I. Act indicates reference to an amicable settlement of various disputes between the appellant and her husband, pursuant to which the appellant’s husband executed a registered irrevocable Power of Attorney dated 10th December 2022 in favour of the appellant. It was agreed under the settlement agreement that the appellant’s husband would transfer by way of gift three properties and also pay an amount of ₹50 crores on the execution of a Declaration-cum- Indemnity document. In reciprocation, complaints made by the appellant as regards fraudulent transfer of her shares in two companies were to be withdrawn. To ensure execution of the Declaration-cum-Indemnity document, the second respondent acted as a guarantor and issued the cheque in question drawn in favour of the appellant. The appellant accordingly signed the Declaration-cum Indemnity document on 13th January 2022. On getting knowledge of the sale of certain shares contrary to the settlement agreement, the appellant presented the cheque issued by the second respondent for being honoured. It has been further stated that said cheque was dishonoured with the remark ‘payment stopped by drawer’. A reference is thereafter made to the issuance of a statutory notice under Section 138 of the N.I. Act dated 20th April 2022, its service on the second respondent and his reply dated 04th May 2022 denying any liability. Accordingly, the said complaint came to be filed by the appellant. The appellant’s statement was duly verified by the learned Metropolitan Magistrate and on being prima facie satisfied that the ingredients of Section 138 of the N.I. Act were present, process came to be issued to the second respondent.

# 8. It is to be borne in mind that at the stage of issuance of process by the learned Metropolitan Magistrate, what is prima facie required to be seen is the issuance of cheque by the drawer in favour of the complainant, its dishonour on presentation by the payee, issuance of statutory notice under Section 138 of the N.I. Act and filing of the complaint within the prescribed statutory period. If the drawer does not dispute issuance of such a cheque nor does he deny his signature on the dishonoured cheque, the statutory presumption as contemplated under Section 139 of the N.I. Act comes into play. As a result, the burden would shift on the drawer of the cheque to prove that the cheque was not issued for any legally enforceable debt or liability. This exercise has to be undertaken during the trial either by relying upon the material brought on record by the complainant or by the drawer leading evidence in rebuttal. At the stage of issuance of process, the statutory presumption under Section 139 of the N.I. Act cannot be   dislodged in a summary manner merely by contending that the cheque issued was not for any legally enforceable debt or liability.

# 9. We may in this regard refer to two decisions of this Court that have reiterated the view that once the basic ingredients of Section 138 of the N.I. Act are duly satisfied by the complainant, the rebuttal of statutory presumption by the drawer can only be made during the course of trial. In Rangappa Vs. Sri Mohan3, it has been explicitly reiterated that the presumption mandated by Section 139 of the N.I. Act includes the presumption as regards existence of a legally enforceable debt or liability. It has been held that Section 139 is an example of a reverse onus clause that has been included in furtherance of the legislative object of improving the credibility of negotiable instruments. The presumption is rebuttable and the accused can raise a defence wherein the existence of a legally enforceable debt or liability can be contested. 3 2010 INSC 289  In Rajesh Jain Vs. Ajay Singh [2023 INSC 888], it has been held as under:

• “34. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that 'unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability'. It will be seen that the 'presumed fact' directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138.

• 35. Section 139 of the NI Act, which takes the form of a ‘shall presume’ clause is illustrative of a presumption of law. Because Section 139 requires that the Court ‘shall presume’ the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase ‘unless the contrary is proved’.

• 36. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35] 

• xxxxx

• 38. As soon as the complainant discharges the burden to  prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.”

# 10. A perusal of the revisional order passed by the learned Judge of the Sessions Court indicates that he has given much importance to the fact that the agreement dated 12th January 2022 was not signed by the second respondent and, hence, the issuance of the cheque in question was not for any enforceable debt. He also appears to have given importance to the dispute between the appellant and her husband by stating that it was a matrimonial dispute and civil litigation between the said parties was pending in various Courts. In our view, the learned Judge misdirected himself when he proceeded to give more weightage to the document dated 12th January 2022 and in the process, ignored the fact that the basic ingredients for attracting the provisions of Section 138 of the N.I. Act had been duly satisfied by the appellant, at least for issuance of process. The drawing of the cheque by the second respondent, its presentation and subsequent dishonour at the instructions of the second respondent is not in dispute. The second respondent does not also dispute that he had issued the said cheque and that it was duly signed by him. The issuance of statutory notice as well as filing of the complaint within the prescribed period are also not in dispute. In such a situation, when the basic ingredients of Section 138 stand duly satisfied and the statutory presumption under Section 139 gets triggered, coming to a conclusion that the cheque was not issued for a legally enforceable debt at the pre-trial stage itself without granting an opportunity to the complainant to substantiate her case by leading evidence would amount to ignoring the statutory presumption that the cheque had been issued for a legally enforceable debt or liability. As a consequence, the presumption under Section 139 of the N.I. Act gets washed away even prior to commencement of the trial. We are of the view that in the facts of the present case, the dismissal of the complaint as a  consequence of setting aside the order issuing process is totally unjustified in the absence of any material being brought on record by the second respondent to rebut the statutory presumption and prove his contention that the cheque was issued not towards any enforceable debt or liability. Since we are inclined to restore the complaint for being tried on merits, it is not necessary to deal with the decision in Sunil Todi and others (supra) in detail. Suffice it to observe that even in the said decision, it has been held that disputed questions as regards existence of outstanding liability are questions of fact that have to be determined at the trial on the basis of evidence.

# 11. For all these reasons, we are of the view that the learned Judge of the Sessions Court committed an error in setting aside the order dated 17th June 2022 passed by the learned Metropolitan Magistrate issuing process under Section 138 of the N.I. Act. The High Court also fell into error in upholding the order passed by the learned Sessions Judge. Accordingly, both the aforesaid orders are set aside. The complaint filed by the appellant being CC1831/SC/2022 stands restored for its adjudication on merits. We clarify that the complaint shall be decided on its own merits and in accordance with law after giving due opportunity to all parties concerned. Any observations made in this judgment shall not be construed as an expression of opinion on the merits of the said case.

# 12. The Criminal Appeal is allowed in aforesaid terms..

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