FAKHRUDDIN AHMAD Vs. STATE OF UTTARANCHAL AND OTHERS

JUDGEMENT

(1.) Both the above titled petitions are interconnected to each other, so these are being disposed of by this single judgment.

(2.) Having heard learned counsel for either party, the facts as adumbrated from the record are that Fakhruddin Ahmad carries a business of poultry farm under the name and style "Azami Poultry Farm" at Lamachaur, Haldwani, District Nainital. He used to supply products of his poultry farm to a retail outlet named "Chicken Point" at Tikonia in Haldwani town. This Chicken Point is being run by Virendra Singh Chauhan and his business partner Surendra Pal Singh (in No. 151 of 2006, supra). The chickens were supplied on cash and credit basis to Virendra Singh Chauhan and Surendra Pal Singh. Thus, a huge amount of credit arrears became due to be paid to Fakhruddin Ahmad. When he displayed his reluctance to keep the supply regular for want of proper payments, Virendra Singh Chauhan allegedly issued a cheque no. 0309820 worth Rs. 8,65,000/- of his Account No. 70187 drawn from Union Bank of India, Haldwani on 15.06.2005. This cheque was handed over by Surendra Pal Singh on behalf of Virendra Singh Chauhan.

(3.) The said cheque was submitted by Fakhruddin Ahmad to his banker State Bank of India and the same was dishonoured on the ground of 'insufficient fund'. The bank issued a slip on dated 26.08.2005 endorsing 'dishonour of cheque'. When Fakhruddin Ahmad got the bank slip containing the said information of dishonour, he issued notice to Virendra Singh Chauhan and Surendra Pal Singh (Annexure no. 2 to the petition) on dated 07.09.2005, as envisaged under Section 138 (b) of the Negotiable Instruments Act, 1881 (for brevity hereinafter called as 'Act'). The notice was returned by Virendra Singh Chauhan while it was received by his associate Surendra Pal Singh. They did not make payment of Fakhruddin Ahmad, as was due upon them, so Fakhruddin Ahmad filed a complaint on dated 10.10.2005 (Annexure no. 11 to the petition) under Section 138 of the Act read with Section 420 IPC. Learned Judicial Magistrate, Haldwani relying upon the statement of Fakhruddin Ahmad under Section 200 Cr.P.C. and his two witnesses Sajid and Mohd. Aslam under Section 202 Cr.P.C. found a prima facie case of cognizance and passed the impugned order on dated 09.01.2006 asking Virendra Singh Chauhan to stand trial for the offence under Section 138 of the Act read with Section 420 IPC and his associate Surendra Pal Singh for the offence under Section 420 IPC. This order is impugned in Criminal Misc. Application No. 151 of 2006 filed by Surendra Pal Singh, wherein original file from court below has been summoned making stop of the case from proceeding ahead.