JUDGMENT AND ORDER (CAV) This application is shown to have been filed under Section 482 read with Sections 397/401 of the Code of Criminal Procedure praying for setting aside the two orders dated 15/11/2013 and 17/1/2014 passed by the learned Judicial Magistrate, 1st Class, Nagaon in CR Case No. 2185/ 2012. 2. By order dated 15/11/2013, an application filed by the petitioner on 9/9/13 was rejected observing that “accused can avail of whatever materials in the form of documents and evidence given by the complainant to prove his case and rest his defence on it.” By the said order, the learned Court observed that before defence of the accused person is heard, ‘opportunity needs to be given to the complainant to present his case’. Thereafter 06/12/2013 was fixed for explaining offence to the accused. Ultimately on 17/01/2014 offence was explained to the accused person and 17/02/2014 was fixed for examination of the prosecution witnesses. These two orders, namely, 15/11/2013 and 17/01/2014 have been challenged by a composite application. 3. Before deciding this Criminal Petition, it is necessary to narrate necessary facts of the case sans unnecessary details. The opposite party No.2 herein as complainant lodged a complaint before the learned Chief Judicial Magistrate Nagaon on 21/07/2012 under Sections 138/142 of the Negotiable Instrument Act, 1988 (as amended). In the complainant it was alleged that present petitioner issued cheque No.546334 of Rs. 3,36,000/- on Indian Bank Nagaon branch against his account No.507103998. The cheque on being presented on 11/06/2012 to Axis Bank Ltd Nagaon Branch, was dishonoured for insufficiency of funds. The same was communicated to the complainant by cheque return memo of Indian Bank on 12/06/2012. Faced with such situation, the complainant made a demand to the accused person under registered post through his lawyer on 18/06/2012 which was received by the accused/petitioner on 19/06/2012. But he failed to make the payment. Under such circumstances and on fulfillment of all conditions precedent laid down under section 138/142 of the Negotiable Instrument Act, 1988 (as amended) (hereinafter referred to as the Act), the complainant instituted the case and prayed for appropriate action under the aforesaid provisions of the Act. The case was registered as CR Case No. 2746/2012. Under such circumstances and on fulfillment of all conditions precedent laid down under section 138/142 of the Negotiable Instrument Act, 1988 (as amended) (hereinafter referred to as the Act), the complainant instituted the case and prayed for appropriate action under the aforesaid provisions of the Act. The case was registered as CR Case No. 2746/2012. The complainant also filed an affidavit in that case being his initial deposition and thereupon, the learned Court took cognizance of offence under Section 138 of the Act and issued summons to the accused/petitioner. 4. A perusal of the order sheet shows that after receipt of summons, the accused took time on 21/01/2013. On 01/03/2013 he filed an application for dispensing with his personal appearance. This application was allowed on the following day and 19/03/2013 was fixed for appearance of the accused. While the accused filed application before the learned Magistrate on 19/03/2013 through his engaged counsel praying for adjournment, he filed an application under Section 482 of the Code of Criminal Procedure before this High Court vide Criminal Petition No. 182/2013. This Court by order dated 20/03/2013 issued notice of motion and stayed all further proceedings of the complaint case i.e. CR Case No. 2746/ 2012. However, subsequently on 30/07/2013, the learned counsel for the accused petitioner made a submission before this Court that he would like to file application for rebutting presumption under Section 139 of the Act before the trial Court and on his such submission, the Criminal Petition No. 182/13 praying for quashment of the complaint was closed giving liberty to the accused petitioner to file petition for appropriate relief before the trial Court. 5. Thereafter, on 02/09/2013 the accused petitioner filed an application before the learned Magistrate purportedly under Section 118(A)/139 of the Act stating that Section 139 of the Act merely raises a presumption in regard to issuance of cheque for discharging of any debt or liability and no presumption can be drawn for existence of legally enforceable debt. Although in Paragraph 6 of this application, the accused claimed to have noticed that trial Court had proceeded on the impression that accused is required to step into the witness box and unless he does so he would not be discharging his burden, but after going through the order sheet, no such materials in support of the contention could be traced. For ready reference, the whole application dated 02/09/2013 filed by the petitioner before the trial Court is quoted below:- “IN THE COURT OF JUDICIAL MAGISTRATE(FIRST CLASS) (MRS. SUJATA DUTTA) NAGAON:: ASSAM) C.R.Case No. 2185/12 Complainant: Shir Manoj Agarwalla Vs. Accused person:- Ashok Kumar Kahar IN THE MATTER OF An application U/S 118(a) r/w Sec.139 N.I. Act. 1988 (as amended upto-date) AND IN THE MATTER Hon’ble Gauhati High Court’s Order dated 30/07/2013 passed in Crl. Petition No. 182/13 by the Hon’ble Justice, Mr. C.R. Sharma, (The certified copy whereof is enclosed). AND Shri Ashok Kuhar S/O. Late Hulashmal Kuhar; Lowkhowa Road (Haiborgaon); Nagaon (Assam). ……….PETITIONER Sir/Madam, The petitioner above-named begs to submit as follows:- 1. That the petitioner on receipt of summons in the above case had entered appearance in the above case and had submitted petition U/s 205 of the Code of Criminal Procedure for dispensing with his personal appearance which was considered by your honour. 2. Thereafter, the petitioner preferred a Revision petition bearing Crl. Petition No. 182/ 2013 before the Hon’ble High Court at Guwahati for quashing the complainant petition and the Hon’ble High Court on perusal of the record and hearing the party was pleased to issue notice to the respondent and also interimly STAYED further proceeding in the above case. 3. That thereafter, on hearing both sides, the Hon’ble High Court was pleased to direct the petitioner to file an application seeking appropriate relief as provided by law for rebutting the presumption before the trial Court and in view of the said observation disposed of the petition in accordance with law. 4. That the petitioner states that section 138 of the N.I. Act had three ingredients Viz:- a) There must be a legally enforceable debt; b) The drawer of the cheque Issued the cheque in Discharge of part or whole of the debt; c) The cheque so issued has been returned due to insufficiency of funds. 5. The proviso appended to the said section provided for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally enforceable debt is not a matter of presumption under section 139 of the Act. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally enforceable debt is not a matter of presumption under section 139 of the Act. It merely raises a presumption in favour of the holder of the cheque that the same has been issued for discharge of any legally enforceable debt should be looked into by the honourable trial court prior to acting upon with the case. 6. In the instant case, it is noticed that the Hon’ble trial court has proceeded on the basis that section 139 of the N.I. Act raises a presumption in regard to existence of a debt also which mean that for providing the defence, the accused is required to step into the witness box and unless he does so, he would not be discharging his burden. 7. That such an approach in proceeding with the above case without ascertaining the existence of any legally enforceable debt with the materials in record is not correct as per law as because an accused for discharging the burden of proof placed upon him under a statute need not examine himself and he may discharge his burden on the basis of materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof in the part of an accused and that of the prosecution in a criminal case is different. This is the reason that the accused person should be given the scope to rebut the presumption without stepping into the witness-box if it is found that there is no existence of legally enforceable debt on the basis of available materials on record furnished by the complainant. Further, the averments made in the complaint petition cannot be taken as a gospel truth just because it is accompanied by a cheque bearing the signature of the accused. A cheque may be issued by a person under various circumstances which may be mis-used by way of projecting a case of payment against a debt. 8. That the petitioner states that in the instant case, the notice dated 18/06/2012 issued by the counsel to the petitioner and thereafter complaint dated 21/07/2012 filed by the complainant and the initial deposition U/s 202 of the Code of Criminal Procedure. on 21/07/2012, no-where anything is mentioned regarding illegally enforceable debt. 9. 8. That the petitioner states that in the instant case, the notice dated 18/06/2012 issued by the counsel to the petitioner and thereafter complaint dated 21/07/2012 filed by the complainant and the initial deposition U/s 202 of the Code of Criminal Procedure. on 21/07/2012, no-where anything is mentioned regarding illegally enforceable debt. 9. That according to law, as stated above, it is clear that section 139 of the N.I. Act that it is not a matter of presumption of an existence of legally enforceable debt and the accused had constitutional right to remain silence and until and unless, the complaint petition and initial deposition, there is no requirement for the accused person to step into the witness-box for discharging his burden as the standard of proof on the part of an accused and that in the prosecution of the criminal case are different. In the premises aforesaid, it is fervently prayed that Your honour may kindly be pleased to admit this application and be further pleased to order put up the C/R with notice to the complainant and after hearing both side on this application and on perusal of the case records be pleased to dismiss the instant complaint case and discharge the accused person. And/or pass any other order/orders as Your honour may deem fit and proper. Pending disposal of this application, Your honour may be pleased not to proceed further in the above case. DATED NAGAON (ASSAM)” 6. Naturally after receipt of this application, the learned trial Court was taken aback as nowhere had the Court asked the petitioner to step into witness box to prove his defence. Even the time for drawing presumption in favour of the complainant had not arisen before the trial Court till then. In course of hearing of the application, attention of the learned trial Court was drawn to the case of Rangappa vs. Sri Mohan reported in (2010) 11 SCC 441 . The learned trial Court after hearing the parties and after perusal of judgment passed by Hon’ble Supreme Court in Rangappa (supra) observed that the accused would be entitled to avail whatever materials in the form of documents and evidence given by the complainant to prove his case and rest his defence on it but before that, opportunity needs to be given to the complainant to present his case. With this observation, the application dated 9/9/13 was disposed of. With this observation, the application dated 9/9/13 was disposed of. On the next dated 17/01/2014 offence was explained and date was fixed for examination of PWs. 7. It appears that the application dated 02/09/2013 which was disposed of by trial Court on 15/11/2013 was not based on the facts of the concerned complaint case. Apprehension mentioned in Paragraph-6 does not exist in the present case. The learned Magistrate, therefore, was rightly “forced to observe that accused has no where been asked to step into the witness box to prove his defence nor has the Court raised any presumption deciding in favour of the complainant.” Having gone through the order sheet of the case which is annexed to this application and after going through the application dated 02.09.2013, the aforesaid observation made by the learned Magistrate is found to be justified. The learned trial Court has committed no mistake in any way and has merely reiterated what the law requires. 8. The accused approached this Court earlier under Section 482 of the Code of Criminal Procedure praying for quashment of the complaint. A notice of motion was issued. Thereafter, accused himself changed his mind and chose to face trial. The criminal petition praying for quashment, therefore, was closed giving liberty to the accused to pray for appropriate relief before the trial Court. The accused thereafter filed application dated 02/09/2013 as aforesaid and prayed that the complaint case be dropped on bare perusal of the complaint itself. Once the accused withdrew his application for quashment of the complaint in the manner as aforesaid, the order taking cognizance continues to remain in force and under such circumstances, there is no question of closing the complaint proceeding before the complaint is given opportunity to lead evidence in support of the complaint. A trial under Section 138 of the Act is held by following summons procedure. This is why offence was explained to the accused to which he pleaded not guilty and claim to be tried. It is submitted at the bar that evidence of complaint side already started and some witness was/ were examined. Thereafter on 09/06/2014 this Court granted stay order. 9. Trial of summons case by Magistrate is provided under Chapter – XX of the Code of Criminal Procedure. It is submitted at the bar that evidence of complaint side already started and some witness was/ were examined. Thereafter on 09/06/2014 this Court granted stay order. 9. Trial of summons case by Magistrate is provided under Chapter – XX of the Code of Criminal Procedure. Substance of accusation is required to be stated to the accused under Section 251 of the Code of Criminal Procedure which is commonly known as explaining offence to the accused. Once the particular of the offence is stated to the accused and he pleads guilty then he can be convicted under Section 252 of the Code of Criminal Procedure. In petty cases such conviction can be passed under section 253 of the Code of Criminal Procedure even in the absence of accused provided he transmits the plea of guilt to the Magistrate by post or by messenger or a letter containing his plea. But once accused is not convicted even on pleading guilty under Section 252 or Section 253 of the Code of Criminal Procedure, the Magistrate is duty bound to proceed to hear the prosecution and take all such evidence as may be produced by the prosecution and then to hear the accused and take all such evidence adduced in his evidence. Section 255 of the Code of Criminal Procedure provides that if Magistrate upon taking the evidence referred to in section 254 of the Code of Criminal Procedure thereof and such further evidence, if any, finds the accused not guilty he shall record an order of acquittal. Under section 255(3) of the Code of Criminal Procedure, Magistrate may convict accused of any offence triable under this chapter from the facts either admitted or proved. Of course section 258 of the Code of Criminal Procedure empowers Magistrate of the first class or with the previous sanction of the Chief Judicial Magistrate any other judicial Magistrate to stop the proceeding at any stage without pronouncing any judgment for reasons to be recorded and where stoppage of proceeding is made after evidence of principal witness has been recorded, pronounce a judgment of acquittal and in any other case release the accused as if he has been discharged. Section 259 of the Code of Criminal Procedure empowers magistrate to convert a summon case into a warrant case in appropriate case. Section 259 of the Code of Criminal Procedure empowers magistrate to convert a summon case into a warrant case in appropriate case. From the appraisal of Sections 251 to 259 under chapter XX of the of the Code of Criminal Procedure it is clear that once offence has been explained to accused and he has not pleaded guilty, the Magistrate is duty bound under Section 254 of the Code of Criminal Procedure to proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. The trial, however, can be stopped in certain case for reasons to be recorded by him without pronouncing any judgment. Here, in this case, learned Magistrate took cognizance of offence under section 138 Cr.P.C of the N.I. Act. After withdrawal of the application under Section 482 of the Code of Criminal Procedure challenging the order taking cognizance, such taking of cognizance has attained finality. The next stage is statement of particulars of offence to the accused. In between these two stages, the accused filed an application for stoppage of the proceeding and have rather prayed for dropping the proceeding merely on reading of the complaint and initial deposition. After the application praying for quashing of the complaint has been withdrawn opting to face trial, the accused is estopped from making the same prayer before the trial Court. A Magistrate has no power to review his order of taking cognizance once he has taken cognizance. The Code of Criminal Procedure has not conferred any power on trial Magistrate to review his order except under Section 362 of the Code of Criminal Procedure thereof for correcting clerical or arithmetical error. Order taking cognizance on 21/07/2012 does not involve any clerical or arithmetical error. In that view of the matter, prayer of the accused for dropping the proceeding and reviewing the order taking cognizance is not maintainable. The impugned order directing the prosecution to produce his evidence in support of the complaint, therefore, is in compliance with the provision of section 254 of the Code of Criminal Procedure. 10. In view of what has been stated above, the learned Magistrate, Nagaon, has not committed any error in passing the orders dated 15/11/2013 or 17/01/2014. 11. This Criminal Petition, therefore, is devoid of any merit and it is accordingly rejected. However, no order as to cost.