KUBER SHARMA Vs. STATE OF U.P.

JUDGEMENT

(1.) This application under Sec. 482 Crimial P.C. has been moved by the applicants with a prayer to quash the summoning order dated 11.05.2009 passed in complaint case no. 3893 of 2008 (Pramod Saxena Vs. Kuber Sharma) under Sec. 138 N.I Act Police Station Civil Lines District Rampur. Further proceedings of the case are also prayed to be stayed.

(2.) Facts giving rise to this application in a nut shell are that a complaint bearing no. 3891 of 2008 under Sec. 138 and 142 N.I. Act was filed by opposite party no. 2 Pramod Saxena, alleging that applicant Kuber Sharma agreed to sell his house to the complaint for a sale consideration of Rs. 7,50,000.00 out of which Rs. 7,00,000.00 were paid as earnest money but later on it was found that property was mortgaged with the State Bank of India so money was returned by Kuber Sharma through a cheque bearing No. 523671 for Rs. 7,00,000.00 lakh in favour of complaint on 05.10.2007. That cheque was deposited by Pramod Saxena for encashment in bank on 26.02008 but the same was dishonored on account of insufficient fund and information to this effect was given to him on 28.02008. Thereafter, a legal notice was sent by Pramod Saxena through his Advocate on 13.03.2008 by registered post with acknowledgment, (UPC) and through courier as well. It was further submitted that Kuber Sharma tried to avoid the service of notice sent through post but ultimately the notice sent through courier was served personally upon him on 25.04.2008. The proof of delivery of courier was provided to the complaint on 26.04.2008, but in compliance of the notice no payment was made. Thereafter a written complaint was filed in the court on 31.05.2008. Complainant examined herself under Sec. 200 Cr.P.C and deposited original cheque, postal receipt, bank memo UPC receipt copy of notice etc.

(3.) Learned C.J.M Rampur after considering the evidence available on record, came to the conclusion that there was prima facie evidence for proceedings under Sec. 138 of N.I Act and summoned accused applicant Kuber Sharma for facing trial vide order dated 11.05.2009. Assailing that order the present application has been preferred.