MANI MITTAL Vs. STATE OF U P

JUDGEMENT

(1.) In the instant petition filed under section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code), the petitioner has prayed for quashing of the complaint case No.2122 of 1998, filed under Section 138 of Negotiable Instruments Act, police Station Civil Line, district Moradabad. Rajiv Kumar Sharma, respondent No.3 (hereinafter referred to as the com-plainant) filed a complaint under Section 138 of the Negotiable Instruments Act, (for short the Act) alleging that the petitioner and one Ram Chandra Sharma being the partners of Pacific Exims owned him a sum of rupees six lakhs. They did not discharge their liability and after repeated demands, issued two cheques; one for rupees 75,000.00 (seventy five ttxund)and arha-fbrru 35,000.00 (thirty five thousand) on 15/8/1996. He deposited these two cheques in the Bareilly Corporation Bank, Amroha Gate, Moradabad, but those were dishonoured since the drawers had no sufficient amount in their account. However, the cheques were revalidated by the drawers on 25/7/1997, whereafter he deposited the same in his account. Again these two cheques were dishonoured due to insufficient amount in the drawers account. It is the further case of the complainant that on 20/2/1998 he sent a notice by telegram demanding the drawers to make payment within five days and when no payment was made, he filed the complaint under Section 138 of the Act. On being summoned, the peti-tioner moved the court below praying to recall the summoning order. By order dated 1/11/2000, learned 2nd A.C.J.M., Moradabad rejected the petition holding that he did not have the power to review or recall his own order. In his opinion, the petitioner ought to have approached the High Court under Section 482 of the Code seeking for necessary relief.

(2.) The complainant, on being noticed, filed a short counter affidavit making evasive denial of the averments made in the petition. Learned counsel for the petitioner in course of arguments raised the following contentions:

(3.) Learned counsel appearing for the complainant, on the other hand, contended that learned Magistrate upon consideration of the allegations made in the complaint coupled with the statement of the complainant, held that prima fade case under Section 138 of the Act was made out against the petitioner and the co-accused and in that view of the matter, it should be left to the court below to decide culpability or otherwise of accused persons on the basis of the evidence to be adduced during trial. It is further urged that scope and ambit of power of this Court under Section 482 of the code being limited, no interference is called for in the present criminal proceeding in exercise of such power.