VIVEK JAISWAL Vs. STATE OF U.P.

JUDGEMENT

(1.) This application under Sec. 482 Crimial P.C. has been filed with a prayer to quash the proceedings of complaint case no. 1133 of 2008 (Ram Mohan Arora Vs. Vivek Jaiswal) under Sec. 138 Negotiable Instrument Act, Police Station Kotwali, District Bareilly pending in the court of Judicial Magistrate-I, Bareilly as well as the impugned order dated 14.12.2009 passed by the Magistrate concerned. Further prayer has been made to stay the proceedings of the aforesaid case.

(2.) The brief facts of the case are that the complainant-opposite party no. 2 filed a complaint before the Judicial Magistrate, Bareilly on 14.12005 with the allegation that opposite party no.2 was running a business of furniture sale in the name and style of Ram Steel Furniture. Having cordial relations with opposite party no.2, applicant purchased some furniture from the shop of opposite party no.2 amounting to Rs.3,37,000.00 and against the said purchase, applicant had given Rs.17,000.00 in cash and issued two cheques of Rs.1,60,000.00 each on different dates in favour of opposite party no. On presentation of the said cheques before the Bank, the same were got dishonoured with the remark 'insufficient fund'. In this regard, the opposite party no.2 sent notice to the applicant, but the applicant did not pay heed. Hence, complaint was filed against the applicant.

(3.) It was submitted by the learned counsel for the applicant that complaint was filed before expiry of the prescribed period, thus it is premature. No cause of action has arisen in favour of opposite party no.2 to initiate proceedings under Sec. 138 Negotiable Instrument Act against the applicant. It was further argued that nothing has been disclosed in the complaint regarding the service of legal notice upon the applicant. Until and unless notice is served upon the applicant, criminal prosecution cannot go on. At this stage, learned counsel for the applicant, referring to the grounds taken in the memo of application and in support of his contention, placed reliance on the following case laws :