DEEPAK KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) A couple, Deepak Kumar and Smt. Nirmala, have invoked the jurisdiction of this Court under Section 482, Cr. P.C. (hereinafter referred to as the Code) and have preferred this Criminal Misc. Application No.7056 of 2005. with the prayer to quash the summoning order dated 16 9 04, by which the learned Special Judicial Magistrate (C.B.I.), Ghaziabad has summoned them for committing offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act), in Complaint Case No.7136 of 2004, Rajbir Singh Vs. Deepak Kumar. The ancillary prayer is for stay of the proceeding of the aforesaid complaint was pendente lite.

(2.) THE encapsulated facts of the case, as is perceptible from the complaint (Annexure No.4), filed by complainant Rajbir Singh respondent No.2 are that the complainant is an employee of Air Force and Kishan Lal, father of the applicant No.1 Deepak Kumar, was his neighbour and was serving as a civil defence personnel. Applicant No.2 Smt. Nirmala is the wife of Deepak Kumar. Being neighbour and persons connected with defence a close friendship and intimacy developed between the applicants and the complainant. As a result of the said intimacy between the two, the applicants took a loan of Rupees 1 lac from the complainant Rajbir Singh, respondent No.2 on 12 4 04 with a promise to repay it within six months. A receipt cum agreement Annexure No.1, was executed on a stamp paper to this effect on 12 4 04 itself. A cheque, dated10 7 04, being cheque No.087411 from Account No.116, of Punjab and Sindh Bank, Sector 19, NOIDA, was also issued by the applicants as a guarantee on the said loan, on the condition that if, the loan amount was not paid within the stipulated period of time then the complainant was free to realise the loan amount by presenting the said cheque in the bank for encashment. As the applicants failed to repay the loan amount within the stipulated period the complainant, left with no other option to realize his money, deposited the said cheque for encashment on 13 7 2004 in his Syndicate Bank, Air Force Station, Hindon, Ghaziabad branch. Syndicate Bank returned the said cheque, bounced and dishonoured to the complainant, along wit a memo dated 15 7 04 , which were received by him on 16 7 04 . The memo indicated that the cheque had bounced because of "funds insufficient". The complainant, thereafter, made several requests to the applicant accused for payment of his loan amount but it was all in vain. Consequently. The complainant gave a legal notice on 26 7 04 under Section 138 of N.I. Act (Annexure No.2) to the applicants accused through his counsel Sri Jai Singh Bhadoria, Advocate. It was sent through courier service DTDC vide Annexure No.3. In spite of service of notice, since, the applicants did not pay the demanded amount of cheque, the complainant, respondent No.2 filed a complaint in the Court of Special C.J.M. (C.B.I.), Ghaziabad on 30 8 04 being complaint case No.7136 of 2004 under Section 138 of the N.I. Act against the applicants accused. Alongwith the complaint he filed photocopies of the agreement, original copy of the cheque issued by applicants, copy of notice and four courier receipts. The trial Court took cognizance of the offence, recorded the statement of the complainant under Section 200, Cr. P.C. on 13 8 04 (Annexure No. 5). and thereafter, vide order dated 16 9 04 , summoned the accused applicants for offence under Section 138 of the N.I. Act vide Annexure No.6. Aggrieved by their summoning order the present Criminal Miscellaneous Application has been filed by the accused applicants with the prayer to quash the same. Complainant respondent No.2 has filed a counter affidavit in this application.

(3.) LEARNED counsel for the applicant submitted that no offence is made out against the applicants as it is not mentioned in the complaint and in statement under Section 200, Cr. P.C. as to on what date the notice/notices alleged to have been sent through DTDC courier service was served on the applicants. He further contended that it is not clear from the complaint as to whether a joint notice or a single notice was sent under Section 138 of the N.I. Act by the complainant to the two applicants and who had received the said notice/notices. Therefore, he submitted that no offence is made out against the applicants as it is not known as to on what date, the offence is made out in absence of the date of service of notice on the applicants. He also submitted that once the notice has been sent by a private courier there cannot be any presumption under Section 114 of Evidence Act read with Section 27 of the General Clauses Act of service of notice on the applicants. He further contended that the complaint was pre mature and, therefore also, no offence is made out against the applicants. He further contended that the present complaint has been filed with malicious intention only for the purpose of harassment.