JUDGMENT - P.V. HARDAS, J.:---The present revision has been filed by the original complainant in Criminal Complaint No. 216/A/2000/B. The said complaint has been filed by the present applicant for an offence punishable under section 138 of the Negotiable Instruments Act, 1881, against the respondent herein. 2. The case of the applicant herein, as set out in the complaint, was that the applicant/complainant on the request of the respondent/accused had advanced a loan of Rs. 16,00,000/- on 2nd February, 1995. The applicant/complainant further averred that as a security for due re-payment of the said loan the respondent/accused had issued a post dated cheque dated 31st December, 1999, Bearing No. 067572, drawn on the Mapusa Urban Co-operative Bank, Panaji Branch, Panaji, Goa. According to the complaint, the said cheque on presentation was returned back unpaid with a remark "Account Closed". The complainant had then issued a notice, in terms of section 138 of the Negotiable Instruments Act, 1881, to the respondent/accused. The respondent/accused had replied to the said notice raising various defences, including that the complaint being in wrongful possession of the cheque had misused the same. Since, the respondent/complainant did not comply with the notice issued by the applicant/complainant, the complainant filed the aforesaid complaint case before the Judicial Magistrate First Class, Panaji, Goa, for an offence punishable under section 138 of the Negotiable Instruments Act, 1881. 3. The learned Magistrate after recording the statement of the complainant ordered issuance of summons to the respondent/accused. The respondent/accused filed an application for withdrawing of the process issued against him. The principal ground urged in the said application was that assuming the complainant had advanced a loan to the accused, the recovery of the loan having become barred by the law of limitation, was an unenforceable debt and, therefore, prima facie, according to the accused, no offence was disclosed. The learned Magistrate by his order dated 29th January, 2001, rejected the said application filed by the respondent/accused, holding that in view of the presumption under section 139 of the Negotiable Instruments Act, 1881, it could not be said that the cheque had been issued without passing of consideration. The learned Magistrate also held that a transaction was within the prescribed period of limitation. 4. Being aggrieved by the order of the learned Magistrate dated 29th January, 2001, the respondent/accused filed Criminal Revision Application No. 9/2001 in the Court of Sessions Judge, Panaji. The learned Magistrate also held that a transaction was within the prescribed period of limitation. 4. Being aggrieved by the order of the learned Magistrate dated 29th January, 2001, the respondent/accused filed Criminal Revision Application No. 9/2001 in the Court of Sessions Judge, Panaji. The learned Sessions Judge by his judgment dated 11th April, 2001, allowed the Criminal Revision filed by the respondent/accused and quashed the order of the learned Magistrate issuing process against the accused. The learned Sessions Judge, while allowing the revision held that the debt in respect of which the cheque had been issued was not a legally enforceable debt as the right to recover it was barred by the law of limitation. Reliance was placed by the learned Sessions Judge on a judgment of this Court in the matter of (Ashwini Bhat v. Jeevan Lolienkar)1, reported in 2000(5) Bom.C.R. (P.B.)9 and in the matter of (Girdhari Lal Rathi v. P.T.V. Ramanujachari and another)2, reported in 1998 Bank, J. (A.P.)127. 5. Being aggrieved by the judgment of the learned Sessions Judge quashing the order of issuance of process, the applicant/complainant has filed this present revision. 6. I have heard Mr. M.S. Sonak, the learned Advocate appearing for the applicant/complainant, Mr. E. Dias, the learned Advocate appearing for the respondent/accused and Mr. A.P. Lawande, the learned Public Prosecutor appearing for the respondent No. 2/State. 7. The learned Advocate appearing for the applicant has urged before me that when a Court deals with an application for recalling of process, the scope is extremely limited. According to the learned Advocate appearing for the appellant, the Court cannot embark on a roving enquiry and decide the probable defence which the accused is likely to take. According to the learned Advocate appearing for the applicant, such an approach would virtually amount to deciding the complaint on merits without affording an opportunity to the complainant to lead evidence and prove his case. 8. Mr. E. Dias, the learned Advocate appearing for the respondent/accused, has submitted before me that the Magistrate, while deciding an application for recalling of process, would be perfectly justified in deciding whether the debt for which the cheque had been issued "was legally enforceable". Thus, according to him, if the accused is able to demonstrate that the debt or other liability is no legally enforceable, the Magistrate can withdraw the process issued against the accused. 9. Thus, according to him, if the accused is able to demonstrate that the debt or other liability is no legally enforceable, the Magistrate can withdraw the process issued against the accused. 9. When an application for recalling of process is moved before a Magistrate at the behest of the accused, it is certainly open to the Magistrate to either recall the order issuing process or reject the application tendered by the accused. The parameters within which the Magistrate has to deal with such an application is extremely limited. All that the Magistrate is required to see is if there is any defect or a lacuna which goes to the root of the institution of the proceedings. If, such defect or lacuna affects the very institution of the proceedings only then would the Magistrate be justified in recalling the process issued against the accused. In other words, the Magistrate has to see whether on plain reading of the complaint and the verification statement of the complainant, an offence punishable under the relevant provision of the law is disclosed. In the present case, the complainant had complained of an offence under section 138 of the Negotiable Instruments Act, 1881. In such type of cases, the Magistrate would be justified in recalling the process it was pointed out to him (i) that the accused is in no way connected with the issuance of the cheque or is not a Director or a partner but is a complete outsider. (ii) that the cheque had been presented beyond the validity period of 6 months from the date on which it was issued. (iii) that the notice had been issued beyond the period of 15 days from the receipt of the intimation regarding bouncing of cheque. (iv) that the complaint had been filed beyond the period of one month as prescribed under section 138 of the Negotiable Instruments Act, 1881. The above list is only illustrative and not exhaustive. However, the Magistrate has to consider such defects as are pointed out to him which go to the root of the matter i.e. to say to the institution of the prosecution. The above list is only illustrative and not exhaustive. However, the Magistrate has to consider such defects as are pointed out to him which go to the root of the matter i.e. to say to the institution of the prosecution. Thus, if on plain reading of the complaint and the verification statement, an offence under section 138 of the Negotiable instruments Act, 1881 is disclosed, the Magistrate would not be justified in recalling the process by taking into consideration the likely defence which may be taken by an accused. A complaint, therefore, cannot be thrown over board on the ground that taking into consideration the defence of the accused, no offence is made out. 10. In the present case, the learned Sessions Judge, by taking into consideration the defence of the accused, has virtually decided the complaint case by holding that the debt was unenforceable in law as the cheque had been issued in respect of a time barred debt. Such finding could be arrived at by a Court only after the parties lead evidence. At this stage, the presumption under section 139 of the Negotiable Instruments Act, 1881, weighs heavily in favour of a complainant and the Court cannot embark on an enquiry to determine whether the debt was legally enforceable or not. The order of the learned Sessions Judge is, therefore, unsustainable. 11. Mr. E. Dias, the learned Advocate appearing for the respondent/accused has urged before me that any finding at this stage on the enforceability of the debt or otherwise would adversely affect the parties to the complaint case. According to him, the defence that the debt was unenforceable in law would not be available to him during the trial. Any observations at this stage would amount to scuttling the defence likely to be raised by the accused. Though, authorities have been cited before me by both the learned Advocates appearing for the parties, I think it would be inappropriate to decide whether the cheque had been issued by the respondent/accused in respect of a debt which was enforceable. It would be, therefore, open to the parties, particularly the accused to raise such a plea before the learned trial Court when the parties lead their evidence. 12. It would be, therefore, open to the parties, particularly the accused to raise such a plea before the learned trial Court when the parties lead their evidence. 12. The order of the learned Sessions Judge, quashing the order of the Magistrate issuing process, is unsustainable in law and, therefore, deserves to be quashed and set aside and the order of the learned Magistrate issuing process against the accused deserves to be restored. 13. In the result, therefore, the criminal revision is allowed. The order of the Sessions Judge, Panaji, Goa, dated 11th April, 2001, in Criminal Revision Application No. 9/2001, quashing the order of the Magistrate dated 29th January, 2001, is hereby quashed and set aside and the order of the Magistrate dated 29th January, 2001 dismissing the application for recalling of process is restored. The learned trial Court shall decide the aforesaid complaint case on merits giving adequate opportunity to the parties to lead evidence. The parties to appear before the learned Magistrate on 24th October, 2001 and on such subsequent dates as the learned Magistrate may fix. The revision is thus allowed. Revision allowed. -----