RANBIR SINGH KHARAB Vs. SANTOSH

JUDGEMENT

(1.) The respondent herein filed a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') in the Court of the learned Metropolitan Magistrate. It is alleged therein that the respondent had given loan of Rs. 18,60,000/- to the petitioner on interest @ 24% p.a. For repayment of this amount, the petitioner herein issued a cheque bearing No. 004050 da'ted 25.12.2003 for Rs.18,60,000/- drawn on Corporation Bank, Palam, New Delhi. When the cheque was presented, it was returned unpaid for the reason 'Stop Payment' vide returning memo dated 16.4.2004. The respondent served legal notice and thereafter filed the aforesaid complaint. Summons have been issued to the petitioner in the said complaint. Challenging the summoning order, the present petition is filed.

(2.) It is, inter alia, pleaded that there was no such loan transaction between the parties; the petitioner, on account of his being hard pressed for time, normally gives his cheque book to his wife at times with several signed cheque leaves; the fact was known to one Ranbir, S/o. Jundan Lal, who happens to be elder brother of his wife and it is possible that he has committed mischief by stealing the Wank cheque and filling the particulars therein. It is further stated that the petitioner had reported the matter to the Police and gave instructions to the bank to stop the payment, after he came to know that the cheque book containing cheque Nos. 111031-111040 was lost, which contained the cheque in question as well. The aforesaid defence raised is a matter for trial as these disputed questions of fact cannot be decided in these proceedings under Section 482 Cr.P.C. In fact, this is the defence of the petitioner which has to be decided by the trail court after recording evidence of both the parties.

(3.) The other submission made is that before issuing the summons, the learned Metropolitan Magistrate did not comply with the provisions of Section 200 Cr.P.C. inasmuch as no pre-summoning evidence was recorded. It is further submitted that though the respondent had filed the affidavit, mere filing of the same was not sufficient compliance of the provisions of Section 200 Cr.P.C. as it was necessary for her to tender the said evidence in the court. The summoning order reads as under :-