JAGMOHAN Vs. STATE OF U P

JUDGEMENT

(1.) learned counsel for the applicant and Sri Dharmendra Singhal, learned counsel for the complainant and perused the materials on record. These connected applications under Section 482, Cr. P.C. have been filed for quashing the proceedings against the applicants-Jagmohan Singhal in the first application and Smt. Kamlesh Singhal in the second application, in Criminal Case No. 1590/9 of 1997 Km. Laxmi Garg v. Jagmohan Singhal under S. 138 of the Negotiable Instruments Act.

(2.) A complaint was filed by the opposite party No. 2 alleging that different cheques to the tune of Rs. 4,37,000/- have been issued on or between 12-7-1994 and 5-4-1995 by way of a loan. However, on non-payment of Rs. 3 lacs, the applicant and his wife co-accused-Smt. Kamlesh Singhal gave a cheque of Rs. 3 lacs bearing Cheque No. 117511 drawn on Nainital Bank Ltd., Muzaffar Nagar. The applicant-Jagmohan Singhal is said to have signed all the cheques, however, when the complainant went to present the cheque to the Bank on 18-2-1997, both the applicants are said to have told him that as they did not have sufficient funds on that date, the cheque should be presented subsequently. However, on 10-7-1997 when the cheque was again presented, the same was returned to the complainant with the bank's endorsements that the payment was being refused as there was an instruction to "stop payment by drawer" and due to "insufficient funds." The complainant sent notices on the permanent address of the applicants with a copy to the office address of the applicants'-firm by registered post on 16-7-1997 and 19-7-1997. While the notices sent at their residence address were not taken by the applicants, however, the registered A.Ds. of the notices sent at the firm's address were received back by the complainant, which were annexed with the complaint. As the payments were not made despite the notices under S. 137 of the Negotiable Instruments Act, hence the complaint was filed on 20-8-1997. After examining the complainant and witnesses under Ss. 200 and 202, Cr. P.C. and perusing the other records, the learned A.C.J.M. 1st, Muzaffar Nagar has summoned the applicants under S. 138 of the Negotiable Instruments Act. After the summoning order, the objections filed by the applicants were also dismissed by the order passed by the 1st Additional C.J.M., Muzaffar Nagar on 16-5-1998 and the Criminal Revision No. 58 of 1998 against the aforesaid order was also dismissed by the learned Sessions Judge, Muzaffar Nagar on 20-7-1997.

(3.) It has been contended by the learned counsel for the applicants that the complainant was not entitled to receive the money, as she had given an undertaking before the Rajasthan State Industrial Development and Investment Corporation Ltd. (RIICO) to enable the applicants'-company to obtain a loan of Rs. 150 lacs. Under this undertaking she was not entitled to withdraw Rs. 4,37,000/-, which she had advanced to the applicants'-firm as an unsecured loan from getting the aforesaid advance from the RIICO. the applicants have even filed certain documents executed by the complainant to this effect.