JUDGMENT Deepak Gupta, C.J.:- By means of this petition, the petitioner has prayed for stay of further proceedings of case no. N.I. 75 of 2011 pending before the trial Court and has also prayed that the Court below be directed to try the case filed by the respondent under section 138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act) along with the case, investigation of which is going on, on the basis of a complaint filed by the petitioner. Briefly stated, the admitted facts of the case are that the respondent no. 2 herein was the duly constituted attorney of the petitioner. The case of the respondent is that both the petitioner and respondent no. 2 had entered into some business dealings and when the business dealings were terminated, the accounts were settled and thereafter, the petitioner agreed to pay a sum of Rs. 23,00,000/- by cheque to the respondent. Since this cheque was dishonoured, the respondent no. 2 initiated proceedings under section 138 of the N.I. Act against the petitioner. 2. On the other hand, the case of the petitioner is that nothing was owed by the petitioner to this respondent no. 2. According to the petitioner when the respondent no. 2 was the attorney, he was in possession of certain cheques signed by the petitioner and after the power of attorney was terminated, the respondent no. 2 had misused one of the said cheques and had wrongly issued a cheque of Rs. 23 lakhs in favour of his own company, M/s. Sreema Agency. The cheque which is allegedly dated 30-04-2011 was presented by the respondent no. 2 to the bank on 05-05-2011 and was returned by the bank on the same day with the report that the cheque could not be honoured because of insufficient funds. Thereafter, the respondent no. 2 issued a demand notice on 16-05-2011 to the petitioner herein asking her to make payment stating the facts of dishonour of the cheque. Thereafter, the petitioner filed an FIR on 25-05-2011 alleging therein that the respondent herein had misused the cheque which he was given as attorney of the petitioner herein. It is not disputed that the N.I. Act case is at the stage of recording evidence whereas in the complaint filed by the petitioner, investigation is still going on. 3. Sri P.K. Biswas, learned Sr. It is not disputed that the N.I. Act case is at the stage of recording evidence whereas in the complaint filed by the petitioner, investigation is still going on. 3. Sri P.K. Biswas, learned Sr. Counsel for the petitioner, has drawn my attention to a judgment of the Apex Court in State of M.P. v. Mishrilal (dead) and others, [ AIR 2003 SC 4089 ] wherein the Apex Court held that where there are two cross cases in respect of the same incident, it would be just and fair that both the cases are decided by the same Court. 4. There can be no quarrel with this proposition. I am also of the view that in this case also though the offences may be different, the genesis is the same, that is whether the cheque was actually issued for discharge of a liability or whether the respondent no. 2 misused a cheque which was handed over to him by the petitioner. Having held so, this Court cannot lose sight of the fact that the case filed by the petitioner is still at the stage of investigation. The question that arises is whether proceedings in a pending case can be stayed only on the basis of an investigation being carried out by the police. What will be the result of the investigation or when will the investigation end is not something which this Court can speculate about. 5. To attract section 138 of the N.I. Act, the cheque must have been issued for discharge of a legally payable debt. Under section 139 of the N.I. Act, there is a presumption that there was a legal debt in favour of the holder of the cheque. This presumption is, however, a rebuttable presumption and it is always open to the person who issued the cheque to prove by leading evidence that there was no legal liability to pay any amount. The question whether legal liability to pay the debt was there or not has nothing to do with the offence, if any, committed by the respondent no. 2. If he has misused the cheque, he can be dealt with under criminal law. The question whether legal liability to pay the debt was there or not has nothing to do with the offence, if any, committed by the respondent no. 2. If he has misused the cheque, he can be dealt with under criminal law. However, even if the cheque has not been misused but the cheque has been issued by the petitioner, then also the petitioner can always lead evidence to show that the cheque was not issued for the discharge of the payment of any legal debt. 6. The law is also well settled that if the facts of the case are such that the criminal Court comes to the conclusion that it cannot decide whether there was any legal liability or not, then the matter has to be decided in favour of the accused and not against him. These are the matters which the petitioner can raise in the trial by cross-examining the complainant and his witnesses and also by leading evidence on herself. These issues can be decided without going into the question whether the respondent no. 2 has committed any offence or not. Therefore, without going into the issue as to whether any offence has been committed by the respondent no. 2 or not, I am clearly of the view that it is open for the petitioner in the proceedings under section 138 of the N.I. Act to lead evidence and discharge the burden on her to prove that the cheque was not issued for discharge of any legally payable liability. This is the crux of the dispute and if that is decided, other questions will become immaterial. Therefore, I am of the opinion that the proceedings under section 138 of the N.I. Act which are at an advanced stage should not be stayed or delayed by tagging them with the complaint of the petitioner. 7. In this view of the matter, the petition is rejected with liberty reserved to the petitioner to raise all defences before the trial Court. 8. Sri P.K. Biswas, learned Sr. Counsel, submits that his client may want to challenge the order of this Court by filing Special Leave Petition in the Apex Court. He, therefore, prays that evidence in this case may not be recorded. 9. Every litigant has a right to approach the higher Court and I do not want to come in the way of such right of the petitioner. He, therefore, prays that evidence in this case may not be recorded. 9. Every litigant has a right to approach the higher Court and I do not want to come in the way of such right of the petitioner. Therefore, the trial Court may fix a date for recording the evidence of the respondent no. 2 in the N.I. Act case in the first fortnight of July, 2014 by which time, the petitioner may obtain appropriate orders from the Apex Court. Send down the lower court records forthwith.