RAKESH KUSHWAHA Vs. STATE OF U P

JUDGEMENT

(1.) This petition under Section 482, Cr.P.C. has been filed by the petitioner with the prayer to quash the further proceedings of complaint case No. 1202/08, Nawab Singh v. Rakesh Kushwaha under Section 138 of the Negotiable Instruments Act, (hereinafter referred to as the Act), PS Chaubeypur, District Kanpur Dehat and also to quash the impugned summoning order dated 25.6.07 passed by the Addl. Civil Judge, (Jr. Division)/J.M., Kanpur Dehat in the aforesaid case. The brief facts of the case are that opposite party No. 2 Nawab Singh Yadav filed a complaint against the applicant Rakesh Kushwaha under Section 138 of the Act alleging therein that on 5.1.07 the applicant took a loan of Rs. 30,000/- from the complainant in order to complete his business and thereafter the complainant again advanced Rs. 2000/- to him. In total Rs. 32,000/- was borrowed by the applicant, who assured to return the same till 15th of February, 2007. When the applicant did not return the money borrowed, the opposite party, No. 2, demanded the same from him, on which the applicant sought further time of 15 days and gave a cheque of Rs. 32,000/- of Union Bank of India, Branch Ravatpur, Kanpur, to the opposite party No. 2 and told him to encash the same from the Bank-after February. The opposite party No. 2 waited till 27.3.07 with a belief that the applicant will return his money in cash instead of cheque given but in vain and on the next day i.e. on 28.3.07, when he presented the said cheque for encashment in the Bank, aforesaid, the same was dishonoured as sufficient money was not there in the account. Thereafter the opposite party No. 2 met the applicant many times for getting his money back but inspite of assurance given, the applicant did not return his money and instead on 10.4.07, the applicant abused him and threatened to kill him. It is also alleged that a registered notice was also sent by the opposite party No. 2 through his counsel on 11.4.07, but no reply was given to the same nor any money was returned.

(2.) The learned Magistrate after taking cognizance of the complaint, recorded the statement of the complainant under Section 200, Cr.P.C. and after considering the contents of the complaint, statement of the complainant as well as the documentary evidence i.e. copy of the notice as well as the cheque, prima facie found the offence under Section 138 of the Act to be made out against the applicant and accordingly summoned him to face trial for the said offence.

(3.) Heard Sri Prashant Kumar Singh holding brief of Sri Manvendra Singh, learned counsel for the applicant, Sri Deepak Gaur, learned counsel for the opposite party No. 2 as well as learned AG A and perused the record.