AMARPAL Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) This petition, under Section 482, Cr.P.C. has ten filed for setting aside the order dated 17.7,2004, passed by Civil Judge (J.D.), Roorkee in Complaint Case No. 158 of 2004, Javed v. Amarpal under Section 138, Negotiable Instruments Act and quashing the proceeding of aforesaid said case. The brief facts of the case are that the respondent No. 3 filed a complaint against the petitioner under Section 138, Negotiable Instruments Act, with the allegation on 12.10.2003, the petitioner took a loan of Rs. 40,000/- from the complainant/respondent No. 3 and in lieu of it he issued cheque No. 233865 dated 25.12.2003. On 15.1.2004 the complainant presented the cheque before the Oriental Bank of Commerce branch, Roorkee but the same was dishonoured. Then he contacted the accused/petitioner and the accused asked him to present the cheque again before the Bank, therefore, he presented the said cheque again before the Bank on 10.6.2004 and again the cheque was dishonoured by the Bank. Thereafter he sent notice to the petitioner and when after receipt of the notice, the petitioner did not pay the money, then he filed the complaint. The learned Magistrate recorded the statement of the complainant under Section 200, Cr.P.C. The complainant also filed documentary evidence before the Court and the learned Magistrate vide impugned order dated 17.7.2004 summoned the accused/petitioner to face trial. Feeling aggrieved, the petitioner has file this petition before this Court for setting aside the impugned summoning order as well as quashing the proceeding of the complaint case.

(2.) I have heard learned Counsel for the parties and perused the record. Learned Counsel for the petitioner has invited my attention towards the notice and has submitted that the cheque was dishonoured on 19.1.2004, but the notice was given to the petitioner on 1.6.2004, i.e. after the expiry of about more than four months, He has submitted that the complaint before the Court should have been filed within a period of one from the date of cause of action. He has also invited my attention towards a judgment of Hon'ble Apex Court, Krishna Exports and Ors. v. Raju Das, 2006 1 SCC(Cri) 350.

(3.) Learned Counsel for respondent has raised rival contention stating therein that there was no bar on the number of time for presentation of cheque with the Bank within six months. Hence in case if the cheque was presented before the Bank and was dishonoured and then it was again presented on the assurance given by the petitioner and it was dishonoured, therefore, on the basis of the alleged notice it cannot be said that the complaint is barred.