IRFAN Vs. STATE OF U.P.

JUDGEMENT

(1.) BY means of this writ petition the petitioners Irfan and Nawab have come up before this Court with a prayer that the summoning order dated 16.6.2004 passed by the Judicial Magistrate, Court No. 2, Muzaffarnagar in Criminal Complaint Case No. 1415/9 of 2003, Irshad v. Irfan and Others under Section 138, Negotiable Instruments Act, P.S. Meerapur, District Muzaffarnagar as well as the order dated 29.5.2006 passed by the Incharge Sessions Judge, Muzaffarnagar in Criminal Revision No. 252 of 2006, Irfan and Others v. State of U.P. and Another, be quashed. For the purpose of disposal of this writ petition the relevant and essential facts are as such that respondent No. 2 Irshad filed a complaint against the petitioners under Sections 138 and 142, Negotiable Instruments Act regarding dishonour of cheque No. 6397654 dated 16.7.2003 of the amount of Rs. 7,000/ - issued to respondent No. 2 against the liability of part payment of the sale of dead animal bones. The said cheque was deposited in Central Bank of India, Meerapur Branch, Muzaffarnagar but the same was dishonoured because of insufficient funds in the account of the accused. Notice was given by respondent No. 2 to the accused petitioners. The petitioners replied the notice given by respondent No. 2 Irshad. On non -payment of the cheque in question, respondent No. 2 Irshad filed a complaint in question against the petitioners Irfan and Nawab. The Magistrate concerned after perusing the statement of the accused petitioners as well as the statement of the complainant recorded under Section 200, Cr.P.C. and the cheque and other documents filed in support of the complaint, passed the summoning order dated 16.6.2004, whereby the petitioners Irfan and Nawab were summoned to face the trial for the offence under Section 138, N.I. Act. Against that order, the petitioners filed revision in the Court of Sessions Judge, Muzaffarnagar. The Incharge Sessions Judge, Muzaffarnagar vide his order dated 29.5.2006 dismissed the revision on the ground that the revision against the summoning order is not maintainable. Aggrieved by the orders of the Magistrate as well as the order of the revisional Court, the petitioners have filed this writ petition before this Court.

(2.) I have heard learned Counsel for the parties and perused the record. From the perusal of the complaint as well as from the statement of respondent No. 2 Irshad and also from the perusal of the photocopy of the cheque in question, the offence under Section 138, N.I. Act is prima facie made out against petitioner No. 2 Nawab only because he is the only person who issued the cheque in question to respondent No. 2 Irshad, so the summoning order of the Magistrate concerned is quashed in respect of petitioner No. 1 Irfan only. He need not surrender/appear in the Court concerned. As regards petitioner No. 2 Nawab, the summoning order of the Magistrate concerned is upheld and the Magistrate concerned is directed to continue the proceedings against petitioner No. 2 Nawab only.