JUDGMENT : S. K. SAHOO, J. 1. This is an application under section 482 of Cr.P.C. filed by the petitioner Ashok Kumar Das with a prayer to hold the impugned order dated 24.06.2005 passed by the learned S.D.J.M., Nayagarh in I.C.C. Case No. 80 of 2005 in taking cognizance of offence under section 138 of the Negotiable Instruments Act, 1881 (hereafter ‘N.I. Act’) as bad and illegal and to quash the complaint case proceeding. 2. It appears that after the complaint petition was filed, learned Magistrate recorded the initial statement of the complainant on 18.06.2005 and on 24.06.2005 after perusing the statement of the complainant and the documents, took cognizance of the offence under section 138 of the Negotiable Instrument Act and issued process against the petitioner. 3. The complaint petition reveals that the complainant was a wholesale dealer of consumer durable items having a showroom at Kacheri Bazar, Main Road, Nayagarh and the petitioner was a retailer of such items and there was business transaction between the parties since 1996 till 2002 and the petitioner was taking consumer durable items and paying at the prescribed rates in cash and credit bills in dealer price. It is stated that during such business transaction, there was outstanding dues against the petitioner for an amount of Rs. 3,55,536/- (rupees three lakhs fifty five thousand fine hundred thirty six) as per the Credit Bill Memo No.3548 dated 11.01.2002 and Rs. 2,77,050.00/- lakhs ( rupees two lakhs seventy seven thousand fifty) as per the Credit Bill Memo No. 3553 dated 27.01.2002. 4. It is the further case of the complainant that despite several approach, the petitioner did not clear up the arrear dues and he took several adjournments to clear up the arrear dues of the consumer items but neglected to clear up the same. The opp. party-complainant issued a pleader’s notice to the petitioner on 11.04.2005 by registered post which was acknowledged by the petitioner on 13.04.2005 and then on 23.04.2005 the petitioner through his advocate sent reply to the pleader’s notice of the complainant wherein though it was admitted that there was business transaction between the parties since 1996 till 2002 but the petitioner disputed regarding the outstanding dues to the tune of Rs. 6,32,586/- (rupees six lakhs thirty two thousand five hundred eighty six) of the complainant against him. 6,32,586/- (rupees six lakhs thirty two thousand five hundred eighty six) of the complainant against him. It is the further case of the complainant that the petitioner came to his show room at Nayagarh and requested him not to take any legal action and asked him to give one week time to clear up the arrear outstanding dues and ultimately the petitioner handed over a post dated cheque dated 28.04.2005 bearing No. 360177 for an amount of Rs. 6,00,000/- (rupees six lakhs) of State Bank of India, Manjhiakhanda Branch of District Nayagarh for discharge of his liability. The cheque was presented by the complainant in his account at UCO Bank, Nayagarh on 29.04.2005 for encashment but intimation was received from the bank that the account of the petitioner was closed. After receipt of the intimation on 18.05.2005 from UCO Bank, Nayagarh, the complainant sent a pleader’s notice in writing on 25.05.2005 making a demand of Rs.6,00,000/- (rupees six lakhs) to be paid within fifteen days of the receipt of the notice. The said notice which was sent by the registered post was acknowledged by the petitioner on 26.05.2005. Since the petitioner didn’t pay the amount within the stipulated period of 15 days, the complaint petition was filed. 5. The sole ground taken by the learned counsel for the petitioner while challenging the complaint case proceeding is that since there was no business transaction between the parties since 2002 and the alleged debt was barred by limitation at the time of issuance of cheque, therefore, there was no legally enforceable debt or other liability against the petitioner under the explanation to section 138 of the N.I. Act and as such the complaint petition was not maintainable. 6. The question that crops up for consideration in this case is whether a cheque which was drawn by the accused on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge in whole or in part, of any debt or other liability cannot be made the foundation of a complaint case proceeding under section 138 of the N.I. Act on the ground that debt was barred by limitation. 7. 7. The learned counsel for the petitioner in support of his contention placed a decision of the Hon’ble Andhra Pradesh High Court in case of Girdhari Lal Rathi -Vrs.-P.T.V. Ramanujachari & another reported in 1997(2) Crimes 658 wherein while dealing with an appeal against acquittal of the charge under section 138 of the Negotiable Instrument Act, it was held that in case a cheque is issued for a time barred debt and it is dishonoured, the accused cannot be convicted under section 138 of the Negotiable Instrument Act. In that case the factual scenario indicates that the loan was advanced in the year 1985 and the cheque was issued in 1990 and it was held that by the time the cheque was issued, the debt appeared to have been barred by limitation because no acknowledgement is alleged to have been obtained by the appellant from the accused before the expiry of three years from the date of loan and accordingly it was held that debt was not legally enforceable at the time of issuance of cheque. The contention which was raised by the learned counsel for the complainant that by issuance of the cheque, the limitation for realizing the loan amount was extended was turned down because at the time of issuance of the cheque, the debt should be a legally recoverable debt. 8. Learned counsel further placed reliance on another decision of the Hon’ble Bombay High Court in case of Ashwini Satish Bhat (Mrs.) -Vrs.-Jeevan Divakar Lolienkar reported in 2000(2) Civil Court Cases 115 (Bombay) wherein the ratio laid down in the case of Girdhari Lal Rathi (supra) was followed and similar view was taken. 9. The learned counsel for the complainant-opp. party no.2 on the other hand placed reliance in case of A. V. Murthy -Vrs.-B. S. Nagabasavanna reported in (2002) 2 Supreme Court Cases 642 wherein the order of the Addl. Sessions Judge in quashing the complaint case proceeding holding that the alleged borrowing was four years prior to the issuance of the cheque and hence that debt was not legally enforceable in view of the bar of limitation and therefore, the Magistrate was in error in taking cognizance of the alleged offence under section 138 of the N.I. Act and the confirming order of the High Court of Karnataka was challenged. The Hon’ble Supreme Court held that under section 118 of the N.I. Act, there is a presumption that until contrary is proved, every negotiable instrument was drawn for consideration. Even under Section 139 of the N.I. Act, it is specifically stated that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. It was further held that under sub-section (3) of Section 25 of the Indian Contract Act, 1872, a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of the suits is a valid contract. The Hon’ble Supreme Court further held that it is not a case where the cheque was drawn in respect of a debt or liability, which was completely barred from being enforced under law. If for example, the cheque was drawn in respect of a debt or liability payable under a wagering contract, it could have been said that that debt or liability is not legally enforceable as it is a claim, which is prohibited under law. This case is not a case of that type. But we are certain that at this stage of the proceedings, to say that the cheque drawn by the respondent was in respect of a debt or liability, which was not legally enforceable, was clearly illegal and erroneous. 10. In case of Rangappa -Vrs.-Sri Mohan reported in (2010) 11 Supreme Court Cases 441, it is held as follows:- “14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat -Vrs.-Dattatraya G. Hegde (2008) 4 Supreme Court Cases 54, may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. To that extent, the impugned observations in Krishna Janardhan Bhat -Vrs.-Dattatraya G. Hegde (2008) 4 Supreme Court Cases 54, may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of ‘preponderance of probabilities’. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.” 11. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.” 11. In case of S. Natarajan -Vrs.-Sama Dharman reported in 2015 (2) Recent Criminal Reports (Criminal) 854 wherein the decision of the Madras High Court quashing the complaint case proceeding holding that for the purpose of invoking section 138 read with section 142 of the N.I. Act, the cheque in question must be issued in respect of legally enforceable debt or other liability and at the time issuance of cheque, the alleged debt of the accused had become time barred was challenged, the Hon’ble Supreme Court held as follows:- “9. In our opinion, therefore, the High Court could not have quashed the proceedings on the ground that at the time of issuance of cheque, the debt had become time barred and therefore, the complaint was not maintainable. The High Court, therefore, fell into a grave error in quashing the proceedings.” 12. In the case in hand, it is the case of the complainant that after the petitioner received consumer durable items by virtue of two credit bills, apart from giving assurance at different point of time by the petitioner to clear up the amount, just prior to the issuance of the cheque, the petitioner met the complainant personally at his show room at Nayagarh and requested him not to take any legal action and further requested to give him one week time to clear up the arrear outstanding amount and when the complainant did not agree and told the petitioner that he had issued the reply notice to him so he had no faith and thereafter, the petitioner handed over a post dated cheque dated 28.04.2005 bearing no. 360177 for a sum of Rs. 6,00,000/- (rupees six lakhs) in favour of the opp.party-complainant. Therefore, there is acknowledgement of debt by the petitioner and in view of section 118 and 139 of the N.I. Act, the cheque was drawn for consideration by the petitioner and it was accepted by the complainant for consideration and the presumption is in favour of the complainant that he received the cheque from the petitioner for the discharge, in whole or in part, of any debt or other liability. The factual scenario of this case is different than the cases which were cited by the learned counsel for the petitioner. 13. In this case, prima facie material is available on record to show that the cheque was issued by the petitioner for part payment of outstanding debt against him. In view of the business transaction between the parties, the credit bills, the continuous negotiation between the parties for clearance of the dues, the letter correspondence between the parties, it can be said that in the year 2005, when the cheque in question was issued by the petitioner and when the cheque was presented by the complainant for encashment, there was legally enforceable debt or other liability and since the account of the petitioner was closed, the cheque was dishonored. 14. Therefore in the context of the case, at this stage of the proceeding, it cannot be said that the cheque drawn by the petitioner was in respect of a debt or liability, which was not legally enforceable and therefore, even if it is dishonoured, the petitioner cannot be prosecuted for an offence under section 138 of the N.I. Act. The petitioner can rebut the presumption under section 139 of the N.I. Act at the time of trial by establishing his case by way of preponderance of probabilities and thereby creating doubt about the existence of a legally enforceable debt or liability. If such a plea is taken, it is expected that the same shall be duly considered by the learned Trial Court in accordance with law. At the stage of taking cognizance of offence, the Magistrate is required to see a prima facie case for commission of the offence in question. On perusal of the complaint petition, the initial statement of the complainant supported by documents, the learned Magistrate has found prima facie material for commission of offence under Section 138 of the N.I. Act. Therefore, I am not inclined to invoke my inherent power under section 482 Cr.P.C. to quash the impugned order and the complaint case proceeding. Accordingly, the CRLMC application being devoid of merit stands dismissed.