MOHAN SRIVASTAVA Vs. STATE OF U.P

JUDGEMENT

(1.) The present petition under Section 482 Cr.P.C. has been filed with a prayer to quash the entire proceedings in Complaint Case No.2049 of 2008,Mahesh Chandra Gupta Vs. Mohan Srivastava, under Section 138 of the Negotiable Instrument Act ( hereinafter referred to as the Act), PS Kotwali Nagar, District Bulandshahr, pending in the Court of Chief Judicial Magistrate, Bulandshahr.

(2.) The brief facts of the case are that opposite party no.2 Mahesh Chandra Gupta field a complaint for the offence punishable under Section 138 of the Act against the applicant Mohan Srivastava with the allegations that after calculation, an amount of Rs.19,28000/- was found due against the applicant and in order to pay the aforesaid dues, stamp paper was also written and a cheque No. 859520, dated 10.10.2007 of ICICI Bank, Kanpur was given to opposite party no.2 at his house. It was told to the complainant-opposite party no.2 not to submit the said cheque for clearance in the Bank before 31.12.007. The opposite party no.2 objected to the said act of the applicant and told him that he was delaying the payment of money and not giving cash and that the Cheque could be dishonoured. On this, the applicant gave an assurance that he is a LIC employee and nothing wrong will happen. On the assurance so given, the opposite party no.2 took the said cheque in good faith and presented the same for clearance before his bankers, Canara Bank, Bulandshahr on 2.2.2008, which was dishonoured by the concerned Bank on 7.1.2008. An information to that effect was received by the opposite party no.2 from his aforesaid bankers Canara Bank, Bulandshahr on 14.1.2008. According to him not only was he defrauded by the applicant in this manner but the said cheque was also misused by the applicant thereby causing a loss of Rs.19,31,822/- to the opposite party no.2. Thereafter on 28.1.2008, the opposite party no.2 send a legal notice through his counsel to the applicant to his residence at Flat No.4, Free India House, LIC Colony, 6/32, Civil Lines, Kanpur as well as to his official address at Inspection Department Fourth Floor, LIC of India, Zonal office 16/98, M.G.Marg, Kanpur, U.P. by registered post, which was received by him on 1.2.2008.But not a single penny was paid to the opposite party no.2. Rather the applicant had sent his reply dated 8.2.2008 against the said notice which is based on false and fictitious statement of facts. It was further stated that cause of action arose on 15/16.2.2008. Thereafter the complaint as aforesaid was filed against the applicant in the Court of Chief Judicial Magistrate, Bulandshahr on 7.3.2008 with the prayer to punish the accused-applicant and claiming that the complainant be given compensation with interest and other expenses.

(3.) After receiving the complaint, the learned Chief Judicial Magistrate, Bulandshahr took cognizance thereof and recorded the statement of the complainant under Section 200 Cr.P.C. After considering the entire materials on record, learned Chief Judicial Magistrate summoned the applicant to face trial vide order dated 19.3.2008 for the offence punishable under Section 138 of the Act finding a prima facie case against him.