AJAY KUMAR Vs. STATE OF U.P.

JUDGEMENT

(1.) THE applicant has preferred this application invoking inherent jurisdiction of this Court under Section 482 Criminal Procedure Code (in short the Code) with a prayer to quash the Complaint Case No. 1008 of 2008 (Sant Kumar Mittal v. Ajay Tau) under Section 420, I.P.C. pending in the Court of Judicial Magistrate -I, Agra and also summoning order dated 23.6.2008 passed by Judicial Magistrate -I, Agra against the applicant. To appreciate the controversy involved in this case the facts in brief are that the opposite party No. 2 filed complaint against the applicant alleging therein that the applicant drew a cheque of Rs. 25 lacs on his account maintained by him with Canara Bank for payment of the amount being part of the sale consideration relating to sale -deed executed by the O.P. No. 2 in favour of the applicant and two other persons. The O.P. No. 2 presented the cheque to the Bank of the applicant through his Bank within a period of its validity. However, it was returned unpaid by the Bank of the applicant for the reason, 'drawer's signatures differs from specimen given'. The O.P. No. 2 served notice upon the applicant as per provisions of Section 138, Negotiable Instruments Act (in short N.I. Act) of which the applicant gave incorrect reply and further failed to make the payment of the amount of the dishonoured cheque to the O.P. No. 2. The learned Magistrate permitted the O.P. No. 2 to file his affidavit instead of recording his statement under Section 200 of the Code and after having considered the affidavit of the O.P. No. 2 and the other material and documents produced by him under Section 202 of the Code, has taken cognizance under Section 420, I.P.C. against the applicant and issued process under Section 204 of the Code. The applicant has prayed to quash the said order of issuing process against him by the Court below by moving this application under Section 482 of the Code.

(2.) HEARD learned Counsel for the parties and perused the record.

(3.) THE next limb of the arguments of the learned Counsel for the applicant is that to constitute an offence under Section 138, N.I. Act following conditions are required to be fulfilled.