ORDER : Rakesh Ranjan, J. Heard Mr. N. Surendrajit, learned counsel appearing for the petitioner and Mr. H. Iswarlal, learned counsel appearing for the respondent complainant. 2. This criminal petition filed under Section 482 of the Criminal Procedure Code is directed against the order dated 23.2.2015 passed in Cril (C) Case No.35 of 2015 whereby and where-under the Incharge Chief Judicial Magistrate, Imphal West, took cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act after recording that prima facie case is made out under Section 138 of the N.I. Act. 3. That order dated 23.2.2015 is under challenge. 4. Learned counsel appearing for the accused petitioner submits that whatever transaction took place, it took place in between the complainant and Mr. M. Biren Singh the younger brother of the petitioner and thereby the amount was given through Cheque by the complainant to the said M. Biren Singh. However, it has also been alleged that the petitioner, in discharge of the said debt had given the Cheque of Rs.12 to the complainant which got dishonoured when it was deposited by the complainant. But the fact remains that transaction had taken place in between the petitioner's brother and complainant and thereby the said amount cannot be said to be legally recoverable from the petitioner and thereby a case under Section 138 of the N.I. Act cannot be maintained against the petitioner and hence the Court did commit illegality in taking cognizance of the offence punishable under Section 138 of the NI Act against the petitioner. 5. Learned counsel further submits that it is true that in terms of Section 139 of the NI Act presumption would be there in favour of the holder that Cheque had been issued in discharge of the debt or other liability but it has clearly been held by the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54 that section 139 of the NI Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. By referring to the aforesaid proposition, learned counsel appearing for the petitioner submits that since the transaction was there in between the complainant and petitioner's brother the amount which the complainant is said to have given to the brother of the complainant is never legally recoverable from the petitioner and thereby order taking cognizance being bad is fit to be set aside. 6. As against this, learned counsel appearing for the complainant respondent submits that it is the case of the complainant that it was the petitioner who approached to the complainant for lending money of Rs.12 lakhs on the pretext that the petitioner is urgently in need of money for executing a contractual work and that on the date of occurrence it was the petitioner who came to the house of the complainant and received the Cheque of Rs.12 lakhs, which of course was in the name of Mr. M. Biren Singh, younger brother of the petitioner but in the circumstances as stated above it can never be said that the transaction was there in between the brother of the petitioner and the complainant rather transaction was very much there in between the petitioner and complainant and therefore, it was the petitioner who returned the money by way of Cheque which on deposit got dishonoured and thereby the petitioner did file a case upon which cognizance for the offence punishable under Section 138 of the NI Act has been taken and that the Court keeping in view the fact of the case has rightly taken cognizance of the offence punishable under Section 138 of the Act which never warrants to be interfered with by this Court. For better appreciation of the submissions advanced on behalf of the parties one needs to take notice of the statements made in para 2, 3 and 4 of the complaint petition, which reads as follows: "2. That, complainant and the accused are friends and closed to each other and one time they are the Cabinet Ministers in the State of Manipur. That, complainant and the accused are friends and closed to each other and one time they are the Cabinet Ministers in the State of Manipur. On 15.11.2013 at about 8.00 a.m. the accused had visited the another house of the complainant located at Lamphel Super Market at Lamphelpat and requested the complainant for allowing him to borrow a sum of Rs.12,00,000/- (Rupees twelve lakhs) only in order to meet the urgency of money in respect of a contract work under Pradhan Mantri Gram Sadak Yojaja (PMGSY for short). On the request of the accused, the complainant was compelled to accept the request of the accused on humanitarian grounds. But, he was not a money lender. Accordingly, on 20.11.2013 at about 7.00 a.m. the accused had visited the house of the complainant at 20 Super Market, Lamphelpat and borrowed the aforesaid amount of Rs.12,00,000/- (Rupees twelve lakhs) only from the complainant in order to meet the urgency of money of the said contract work. On the same day, the accused had collected/borrowed the aforesaid amount of 6(six) different cheques of Rs.2,00,000/- (Rupees two lakhs) each in the name of Moirangthem Biren Singh who is the younger brother of the accused vis; (1) cheque No.709296, (2) Cheque No.709295, (3) Cheque No.709294, (4) Cheque No.709297, (5) Cheque No.709298 and (6) Cheque No.709299 respectively as instructed by the accused. 3. That, on 20.11.2013 the accused had with drawned the above said amount of Rs.2,00,000/- each in different 6(six) cheques altogether Rs.12,00,000/- (Rupees twelve lakhs) only from the State Bank of India, MG Avenue, Imphal, Branch Code-92 under Account No.10929275489 which is belonged to the complainant. On 20.10.2015 at 15:04:22 hours, the complainant had obtained the statement of accounts from 15.11.2013 to 25.11.2013 from the SBI, Imphal Branch, MG Avenue. 4. That, on 30.12.2014 the accused had delivered a bank cheque of Rs.12,00,000/- (Rupees twelve lakhs) only in the name of M/s Diamond Brick Farm, Khongjom as Proprietor under Account No.07320000001129 of Indian Overseas Bank, Imphal Branch (732) 704 & 706 Hospital Road, Thangal Bazar, Imphal 795001 to the complainant. Thereafter, on receiving the aforesaid Bank Cheque, on 30.12.2014 the complainant had visited the SBI, Imphal Branch, MG Avenue, Imphal and submitted the aforesaid bank cheque to enter the same amount to his account bearing A/c No.10929275489. Thereafter, on receiving the aforesaid Bank Cheque, on 30.12.2014 the complainant had visited the SBI, Imphal Branch, MG Avenue, Imphal and submitted the aforesaid bank cheque to enter the same amount to his account bearing A/c No.10929275489. Thereafter, on 18.01.2015 the complainant again visited the SBI at MG Avenue, Imphal to make enquiry as to whether the amount of Rs.12,00,000/- had been entered in the account of the complainant which is opened in the SBI, MG Avenue. However, on the same day i.e. on 18.01.2015 it was found that the cheque was dishonoured as there was insufficiency of funds. On 18.01.2015 the SBI, Imphal Branch had furnished the Return Memo dated 02.01.2015, INST No.111513 for an amount of Rs.12,00,000/- of the Indian Overseas Bank from SBI, MG Avenue, Imphal and the reason of Return Reason Code No.99 which is mentioned as "99 Other Reason Funds Insufficient" and returned the cheque to the complainant. Thereafter, the complainant returned home with dejection." 7. From perusal of the statement it would appear that it was the petitioner who approached to the complainant for lending money which was given but given in the name of the petitioner's brother though as per the statement Cheque was collected by the petitioner. In that event I do not find any illegality on the part of the learned Magistrate to record that prima facie case is there to attract offence under Section 138 of N.I. Act and, accordingly, learned Magistrate took cognizance of offence punishable under Section 138 of the NI Act which never warrants to be interfered with. 8. Under the circumstances it would not be advisable to record any finding at this stage on the issue as to whether money is legally recoverable debt from the petitioner or not as in the facts and circumstances of the case it is to be decided during trial. Under the circumstance the judgment relied upon by the petitioner is not applicable. 9. Accordingly, I do not find any merit in this case. Hence it is dismissed. 10. Before parting with this order, it be recorded that any finding recorded shall not be prejudicial to the case of the parties.