OM PRAKASH GUPTA Vs. STATE

JUDGEMENT

(1.) THIS is a petition under section 482 of Code of Criminal Procedure wherein prayer is made for setting aside the impugned order dated 3 rd January, 2011 passed by the ld.Metropolitan Magistrate (NW), Rohini Court, Delhi whereby the petitioner has been summoned for an offence punishable under section 138 of the Negotiable Instruments Act, 1881.

(2.) THE respondent no.2/complainant had filed a complaint under section 138 of the Negotiable Instruments Act, 1881 alleging therein that he had lent a friendly loan of Rs.20,80,000/ - to the petitioner in cash on 4.4.2009. It is alleged that petitioner promised to return the same in the month of May, 2009 and for that purpose had issued a cheque dated 8.5.2009 bearing no.444770 drawn on Indian Overseas Bank, Tolstoy Marg, New Delhi in favour of the respondent no.2/ complainant. On presentation of the said cheque to the bank i.e., Indian Overseas Bank, Shalimar Bagh, Delhi for realization through its banker, the same was returned by the bank vide return memo dated 7.12.2009 with the remarks Äccount closed". It is alleged that within 30 days of receipt of said information from its bank, respondent no.2/ complainant had sent a legal notice on 4.1.2010 through his lawyer to the petitioner under section 138 of the Act requesting him to make payment within a period of 15 days from the date of receipt of the said notice. However, no payment was made by the petitioner. On 18th February, 2010, complainant/respondent no.2 filed the aforesaid complaint against the petitioner.

(3.) LEARNED senior counsel for the petitioner has submitted that the date on the cheque has been altered by respondent no.2/complainant from 08.05.2004 to 08.05.2009. Besides, the alteration of date, the "return memo" is 7 months after the date of issuance of cheque, as such exceeds the six months validity period within which the said cheque ought to have It is submitted that the ld.M.M. vide order dated 20 th been presented. March, 2010 had observed that since the return memo is 7 months older than the date of the cheque and there is nothing on record as on what date the cheque in question was presented, the ld.M.M. had put up the matter for pre - summoning evidence. Thereafter, the respondent no.2/ complainant had moved an application for summoning the bank witness i.e., Branch Manager of Indian Overseas Bank, Shalimar Bagh and the said witness had also appeared on 6.8.2010. However, the said witness could not be examined as the Presiding Officer was on leave and the witness was discharged by the Link M.M. unexamined. It is submitted that in these circumstances the ld.M.M. ought not have summoned the petitioner without recording its prima facie satisfaction about the date of presentation of the cheque by the respondent no.2 in the bank. It is submitted that the the ld.M.M. summoned the petitioner/accused in a casual manner. It is submitted that there is prima facie no evidence on record to show that cheque in question was presented to the bank within a period of six months. In these circumstances, Ld.M.M. ought not have summoned the petitioner. Learned senior counsel for the petitioner has submitted that in a catena of judgments, the Supreme Court has held that for commission of an offence u/s 138 of the Act, it is mandatory that the cheque be presented for encashment within six months from the date it is drawn or within its validity period. In support of the contention, learned counsel has relied upon Shri Ishar Alloy Steels Ltd vs. Jayaswals Neco Ltd (2001) 3 SCC 609. It is further contended that when there is no prima facie evidence on record to show as to when the cheque in question was presented to the bank for encashment, the impugned order passed by the ld.M.M. summoning the petitioner is without due application of mind, as such the same is liable to be set aside.