M.R. Pathak, J.:-- This application under Section 482 of the Code of Criminal Procedure (Cr.P.C., in short) read with Sections 483/397/401 Cr.P.C. and Article 227 of the Constitution of India has been preferred by the petitioner challenging the legality and validity of the Judgment & Order dated 25.05.2013 passed by learned Judicial Magistrate First Class (JMFC, in short), Itanagar Capital Complex in C. R. Case No.53 of 2011 under Section 138 of the Negotiable Instruments Act, 1881 (Taba Takam v. Techi Doya) convicting the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (N.I. Act, in short) read with Section 252 Cr.P.C. and sentencing him to undergo Simple Imprisonment for a period of 2 (two) years, directing him to pay L 26.46,000/-, twice the amount of the cheque as fine. By the said order, the petitioner was directed to pay twice the amount i.e. L 26,46,000/- to the complainant (as compensation) under Section 357(3) of the Cr.P.C. and to deposit L10,000/-, out of the fine amount, in the Government exchequer as Court expenses and further, to pay the said amount of fine & compensation before the said trial Court within a period of 30 days from the date of receipt of the Judgment, granting him liberty to surrender before they Officer-in-Charge of Itanagar to serve the term of conviction. 2. Heard Mr. Lobsong Tenzing, learned Counsel for the accused petitioner. Also Heard Mr. Kholie Tado, learned Public Prosecutor, Arunachal Pradesh for the respondent No.1 and Mr. Domo Boje, learned Counsel for the respondent No.2/Complainant. 3. The case of the complainant/respondent No.2 in brief are as follows: That on 25.09.2011 the petitioner signed an agreement before local witnesses to pay a sum of L 12,90,000/-to the complainant in two instalments, 1st instalment within 29.10.2011 and 2nd instalment by 30.10.2011 for an amount of L 7,00,000/-and L 6,90,000/-, with interest, respectively and that said agreement was duly countersigned by Judicial Magistrate First Class (JMFC), Itanagar on 30.09.2011. As per the said agreement, failure on the part of the petitioner to return the said agreed amount, he had to hand over the landed property with buildings mentioned in the said agreement. As per the said agreement, failure on the part of the petitioner to return the said agreed amount, he had to hand over the landed property with buildings mentioned in the said agreement. The petitioner failed to comply with the said agreement and on 30.10.2011 issued a cheque bearing No.010903 of Saving Bank Account No.379010200005418 for a sum of L 13,23,000/- in favour of the complainant drawn on Axis Bank, Itanagar Branch to be drawn on 30.10.2011. The said cheque was paid by the petitioner to repay the liabilities to the petitioner and the same on being deposited by the complainant in his account in the State Bank of India at Ganga Branch, it bounced on 04.11.2011 due to insufficient funds in the account of the accused petitioner. Thereafter, the complainant on 24.11.2011 issued a statutory notice to the accused petitioner that he has committed an offence under Section 138 of the N. L Act for dishonouring of the cheque and under Section 420 of the IPC for cheating a friend and asked him to pay the said amount of L 13,23,000/- to him within 15 days from the date of receipt of the said notice. The accused petitioner on 07.12.2011 filed his reply to the said notice dated 24.11.2011, refusing to make any payment towards any liability to the complainant denying that he has not committed any offence under Section 138 of the N. I. Act as he did not issue the said cheque towards the charge of any liability or any loan or debt to the complainant, but only to save his life, as the complainant and the villagers forcefully took his signature in the agreement from his residence at Jullung under threat and coercion, against which he has filed application for cancellation of the said agreement dated 25.09.2011 and also lodged and FIR on 06.10.2011 before the Officer-in-Charge of Itanagar Police Station. 4. Thereafter the respondent No.2 as a complainant on 22.12.2011 lodged a complaint under Section 190 of the Cr.P.C. read with Section 200 Cr.P.C. against the accused petitioner for committing offences under Section 420 of the IPC and under Section 138 of the N. I. Act which was registered as C.R. No.53/2011. 5. Mr. 4. Thereafter the respondent No.2 as a complainant on 22.12.2011 lodged a complaint under Section 190 of the Cr.P.C. read with Section 200 Cr.P.C. against the accused petitioner for committing offences under Section 420 of the IPC and under Section 138 of the N. I. Act which was registered as C.R. No.53/2011. 5. Mr. Tenzin, learned Counsel on behalf of the petitioner submitted that without marshaling the evidence in proper perspective and without considering the records in proper manner, the trial court wrongly came to a presumption that petitioner admitted his guilt and by the impugned Judgment & Order dated 25.05.2013 illegally convicted and punished him. It is urged that the learned trial Court without following the mandatory provisions of Section 252 of the Cr.P.C. and Section 138 of the N. I. Act, passed the impugned order of conviction and punishment upon the petitioner. Mr. Tenzin, on behalf of the petitioner relied upon the Judgments of this Court reported in (2004) 1 GLT 652 (Yunus Khan v. Mazhar Khan) and (2005) 2 GLT 226 (Sandip Roy Choudhury v. Nupur Saha). 6. On the other hand Mr. Boje, learned Counsel for the complainant/respondent No.2 supporting the impugned Judgment & Order submitted that after recording statements of the five complainant's witnesses, including the complainant, examining the documents adduced as evidence by the complainant and on the statement of the accused petitioner, recorded on oath before the Magistrate, where he admitted his guilt that he signed the cheque in question on 30.10.2011; the learned trial Court rightly came to the finding that it was the same cheque dated 30.10.2011 issued by the petitioner to the complainant was dishonoured and bounced due to insufficiency of fund in the account of the petitioner and as such learned trial Court lawfully passed the impugned Judgment & Order dated 25.5.2013 convicting and punishing the petitioner under Section 138 of the N. 1. Act read with Section 252 of the Cr.P.C. Mr. Boje on behalf of the complainant placed reliance on the judgments reported in 1955 CriLJ 767 (S.M.Jaffty v. The State of UP), 1980 CrILJ 114 (State of Sikkim v. Futi Sherpana 1994 CriLJ 3765 (Durvasa & Ors v. Chandrakala), 1996 CriLJ 1472 (C. Suhharayudu v. State of Andhra Pradesh) and judgment of Hon'ble Madras High Court in the case Ms. Sasi Poly Colours v. M/S. Lakshmi Polymers disposed of on 28.3.2006. 7. Sasi Poly Colours v. M/S. Lakshmi Polymers disposed of on 28.3.2006. 7. From the impugned Judgment & Order dated 25.05.2013, it is seen that the learned trial court after going through the depositions of five complainant's witnesses came to a finding that the Bank cheque in question was borne out of the dispute with regard to the share of the bill amount between the complainant and the accused petitioner and from the deposition of complainant witness No.5 (CW-5) he found that the public including the Head Gaon Burha(HGB), Gaon Burha (GB) and the Anchal Samity Member (ASM) gathered in the house of the accused petitioner fixed the final amount of the share of the complainant at L 12,90,000/-, which the accused petitioner agreed to pay to the complainant in the month of October and on refusal to accept a tom cheque, the accused petitioner himself brought the cheque in question to the residence of the CW-5, handed over the same to him in presence of another person, who was not examined by either of the parties. Moreover, from the deposition of the accused petitioner the learned trial Court found that he corroborated the signing and handing over the cheque in question to CW-5, the representative of the complainant and as in his deposition, the accused petitioner stated that 'out of anger' he signed the cheque amount of L 13,28,000/- payable at Axis Bank, that later bounced on presentation due to insufficient fund in his account, as disclosed from the depositions and evidences of the claimant's witnesses. 8. With regard to the deed of agreement dated 25.09.2011 entered between the complainant and the accused petitioner for repayment of L 12,90,000/-, the learned trial Court came to a finding that the same was not carried out under any threat or force or duress as the claimant witness No.2 (CW-2), the JMFC, who countersigned the said agreement on 30.09.2011 passed an order in which the counter signature in the said agreement was treated to be genuine and valid. 9. 9. The trial Court after deliberation came to the conclusion that the accused petitioner might have signed the cheque 'out of anger', but he admitted the fact of signing the cheque, that was dishonoured by the bank due to insufficient fund in his account and since he admitted the same before the presiding officer in the open Court that he had signed the cheque in question, it can be presumed that he admitted his guilt and accordingly, the learned trial Court came to the conclusion that the required ingredients to draw the offence under Section 138 of the N. I. Act is proved on merit and consequently convicted the accused petitioner under Section 138 of the N. I. Act read with Section 252 of the Cr.RC. 10. Considered the judgments cited by the parties. 11. From the records of the trial Court, the documents annexed by the accused petitioner in the petition as well as by the respondent No.2/complainant in his affidavit-in-op-position in the case in hand, it is seen that before issue of process of the case by examining the complainant upon oath and his witness present, as required under Section 200 of the Cr.P.C. and are mandatory in nature, the learned trial Court (JMFC, Itanagar) on 17.01.2012 itself explained the charges to the accused petitioner to which he pleaded not guilty and on that day itself the trial Court directed the accused petitioner to submit his written reply to the charges supported by documentary as well as material evidences, if any, before the next date of hearing of the case. The examination of the complainant upon oath was carried out only on 27.01.2012 and his witnesses from the relevant banks were examined on 08.02.2012 and the trial Court on 13.08.2012 framed the formal charge of Section 13 8 of the N. I. Act 1881, this time without explaining the said charge to the accused petitioner. 12. Section 252 of the Cr.P.C. reads as follows: "252. Conviction on plea of guilty. - If the accused pleads guilty, the magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion convict him thereon." 13. It is a settled law that the requirements of provisions of Section 252 Cr.P.C. are mandatory in character and a violation of these provisions vitiates the trial and renders the conviction legally invalid. It is a settled law that the requirements of provisions of Section 252 Cr.P.C. are mandatory in character and a violation of these provisions vitiates the trial and renders the conviction legally invalid. Under this section the accused is required to be asked by the Court as to whether he pleads guilty or has any defence to make. The Magistrate has the discretion to convict the accused if only he pleads guilty. If the accused admits some or all of the charges alleged by the prosecution but pleads 'not guilty', the Court is bound to proceed according to law by examining the witnesses for the prosecution & defence. 14. In the case of Mahant Kaushalya Das v. State of Madras, reported in AIR 1966 SC 22 , the Hon'ble Apex Court has held that- "the requirements of Section 243 of the Criminal Procedure Code (now Section 252 after amendment) are mandatory in character and a violation of these provisions vitiates the trial and renders the conviction legally invalid. The requirement of the section is not a mere empty formality but is a matter of substance intended to secure proper administration of justice. It is important that the terms of the section are strictly complied with because the right of appeal of the accused depends upon the circumstance whether he pleaded guilty or not and it is for this reason that the legislature requires that the exact words used by the accused in his plea of guilty should, as nearly as possible, be recorded in his own language in order to prevent any mistake or misapprehension." 15. It is seen that while recording his deposition by the learned trail Court, the accused petitioner made a statement that 'out of anger he signed a cheque amounting to L 12,23,800/- in the Axis Bank' and the learned trial Court considering the said particular statement of the accused petitioner as an admission of his guilt under Section 252 of the Cr.P.C., since such recording of deposition of the accused petitioner was made on oath before the trial Court, who happens to be a Magistrate (JMFC) in the case, without considering the fact that in the same case on 17.01.2012, the accused petitioner pleaded 'not guilty of the charges of the case and this finding of the learned trial Court is in clear violation of the provision of the Section 252 Cr.P.C. as it envisages. 16. Again from the impugned Judgment & Order dated 25.05.2013 it is seen that the learned trial Court came to the conclusion that as the accused petitioner has admitted the fact that he has signed the cheque, though out of anger, which has been dishonoured by the bank due to insufficiency of fund in his account and since he refused to comply with the legal notice of the complainant, the required ingredients to draw offence under Section 138 of the N. I. Act are fulfilled. Accordingly he passed the impugned judgment & order of conviction & punishment with fine. 17. Though the learned trial Court came to the final conclusion that since the cheque issued by the accused petitioner has been dishonoured by the bank due to insufficient fund in his account for which he is liable for the offence under Section 138 of the N. I. Act; but, before such conclusion/finding the said Court failed to consider the fact as to whether the accused petitioner signed the cheque in question for the said amount to discharge any legally enforceable existing/ outstanding debt or other liability, towards the complainant, in whole or in part, giving rise to the commission of the offence punishable under Section 138 of the N. I. Act or not. The 'Explanation' to the Section 138 of the N. I. Act specifies that for the purpose of the said Section, "debt or other liability" means a legally enforceable debt or other liability. 18. The 'Explanation' to the Section 138 of the N. I. Act specifies that for the purpose of the said Section, "debt or other liability" means a legally enforceable debt or other liability. 18. In the case of Jugesh Sehgal v. Shamsher Singh Gogi, reported in (2009) 14 SCC 683 , the Hon'ble Supreme Court have held that to constitute an offence under Section 138, Negotiable Instruments Act, 1881, the following ingredients are required to be fulfilled: (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account; (ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier; (iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act. 19.The Hon'ble Apex Court in the case of Indus Airways (P) Ltd v. Magnum Aviation (P) Ltd. reported in (2014) 12 SCC 539 has held that - "The Explanation appended to Section 138 explains the meaning of the expression "debt or other liability" for the purpose of Section 138. This expression means a legally enforceable debt or other liability. 19.The Hon'ble Apex Court in the case of Indus Airways (P) Ltd v. Magnum Aviation (P) Ltd. reported in (2014) 12 SCC 539 has held that - "The Explanation appended to Section 138 explains the meaning of the expression "debt or other liability" for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The Explanation leaves no manner of doubt that to attract an offence under Section 138, there should be a legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of an existing or past adjudicated liability is sine qua non for bringing an offence under Section 138. If a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise, and material or goods for which purchase order was placed is not supplied, in our considered view, the cheque cannot be held to have been drawn for an existing debt or liability. The payment by cheque in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability." 20. Learned Judge of this Court in the case of Amulya Patowary v. Amamrendra Choudhury reported in (2013) 5 GLT 201 was pleased to hold that no offence under Section 138 of the N. I. Act is made out if the cheque, which is dishonoured, was issued in respect of any existing or enforceable debt or liability. 21. It is a settled law that existence of debt or other liabilities has to be proved in the first instance by the complainant and thereafter the burden of proving to the contrary shifts on the accused. 22. 21. It is a settled law that existence of debt or other liabilities has to be proved in the first instance by the complainant and thereafter the burden of proving to the contrary shifts on the accused. 22. On examination of the facts of this case, the depositions of the complainant and his other witnesses, it is noticed that although the accused petitioner issued the cheque that was dishonoured due to insufficient fund in his account, but there appears many loopholes in the case of the complainant since he failed to establish that the cheque in question was issued by the accused petitioner was for repayment of the amount of his share of profit, against the investment that he made in the business of the accused petitioner. Moreover, the complainant also failed to prove the total amount that he invested in the said business of the accused petitioner and as to when he made such investment. Neither the complainant nor his witnesses (CWs) in their depositions specified the date on which such investment was made by the complainant and the amount that he invested or paid as an advance to the accused petitioner. In his complaint before the Magistrate and during recording of his deposition before the trial Court, the complainant only stated that the accused petitioner agreed to repay back the share of profit from his business and entered in to an agreement with him on 25.09.2011 in presence of local witnesses to pay him an amount of L 12,90,000/- in two instalments, one on 29.09.2011 and the other on 30.10.2011 and failure on his part to pay the said amount within the time fixed, the complainant shall seize 500 square meters of land of the accused petitioner at Jully-Dath, Itanagar and that the accused petitioner on 30.10.2011 handed him the cheque in question. On the other hand CW-5 in his deposition stated that public gathered in the house of the accused petitioner and the said gathered public determined the amount of L 12,90,000/-plus L 1,20,000/- as interest upon the same payable to the complainant, which the accused petitioner did not agree to pay and on the next day when public gathered in the house of the accused petitioner again and made the demand for payment of the said amount as assessed by them, only then the accused petitioner agreed to pay the same and accordingly agreement was drawn in the presence of the public. As per the deposition of said CW-5, accused petitioner took time for repayment till the month of October 2011 and on 05.10.2011 the accused petitioner handed him a cheque for an amount of L 13,23,000/- in presence of another person and as per advice of the ASM of the village, when he handed over the said cheque to the complainant, he on the other hand requested CW-5 to keep the cheque in question in his disposal, informing him that it would be en-cashed on 30th November 2011. But it is evident that the cheque was bounced on 04.11.2011 itself for insufficient fund in the account of the accused petitioner. It appears that complainant and the other CWs have conveniently omitted to mention the date on which such amount was advanced by the complainant in the business of the accused petitioner and the total amount that the complainant invested in the business of the accused petitioner, which is fatal to the complainant's case. The complainant in the case before the trial Court failed to disclose and prove the date on which he advanced the alleged amount to the accused petitioner and also failed prove as to whether the accused petitioner issued the cheque in question discharging any lawful debt to the complainant. There are also glaring inconsistencies indicating gaping hole in the complainant's version that the cheque although had been issued, the same was also meant to be en-cashed on 30.10.2011, the date when it was issued. 23. There are also glaring inconsistencies indicating gaping hole in the complainant's version that the cheque although had been issued, the same was also meant to be en-cashed on 30.10.2011, the date when it was issued. 23. In the absence of any details of the date on which the money was invested by the complainant in the business of the accused petitioner; the total amount of such investment that he advanced to him and also in the absence of any documentary or other evidence to show that any such loan transaction had indeed taken place between the parties, which are vital circumstances, the accused petitioner cannot be held guilty for the offence under Section 13 8 of the N.I. Act. 24. For the reasons stated above, the Court is of the opinion that the prosecution has failed to make out a case under Section 13 8 of the N. I. Act, 1881 read with Section 252 of the Cr.P.C. against the accused petitioner and therefore, the impugned Judgment & Order of conviction & punishment dated 25.05.2013 passed by learned Judicial Magistrate First Class, Itanagar Capital Complex in C. R. Case No.53 of 2011 is hereby set aside and quashed. 25. Consequently, the order of imprisonment and payment of fine & compensation are also set aside and quashed. The accused petitioner is aCquitted from the offence under Section/TC8 of the N.I. Act as well as under Secern 252 of the Cr.P.C. 26. Accordingly this petition is allowed. No order as to cost. 27. Registry shall send down the LCR. --