HARISH CHANDRA KALWANI Vs. STATE OF U P

JUDGEMENT

(1.) RAVINDRA Singh, J. This application has been filed by the appli cant Harish Chandra Kalwani with a prayer to quash thecomplaint dated 24-3- 2005 as well as consequential order dated 5-3-2008 passed by learned IInd Additional Civil Judge (J. D.)/judicial Magistrate, Banda in Criminal Case No. 387/ix of 2006 under Section 138, N. I. Act. "

(2.) THE facts in brief of this case are that the O. P. No. 2 Keshav Prasad Gupta filed a complaint under Section 138 N. I. Act that a sum of Rs. 25. 000/- was given to the applicant as a loan on 5-8-2004, at the time of giving the loan the applicant provided post dated cheque as a security, consequentially the said loan of Rs. 25,000/- was not returned by the applicant. THE O. P. No. 2 presented the post dated cheque in the Bank which was returned by the Bank with an endorsement 'exceeds Arrangement' regarding which a notice was given to the applicant for making the payment of the aforesaid amount thereafter the complaint was filed on 29-3-2005 on which the learned Magistrate concerned has taken the cognizance and summoned the applicant on 1-10-2005 thereafter on 24-10-2007 the charge was framed against the applicant. THE applicant moved the application dated 8-1 -2008 in the Court concerned mentioning therein that the post dated cheque was issued by the applicant as a security/guarantee which was not existing enforce able debt or liability, therefore, no offence under Section 138, N. I. Act was made out, therefore, the applicant is liable to be discharged but that application has been rejected by learned Magistrate concerned on 5-3-2008. Being aggrieved from the order dated 5-3-2008 the applicant has filed the present application to invoke the powers conferred under Section 482, Cr. P. C.

(3.) IN reply of the above contention it is submitted by learned A. G. A. and learned Counsel for O. P. No. 2 that in the present case the learned Magistrate concerned has not committed any error in taking the cognizance vide order dated 1-10-2005. The charge was framed against the applicant on 24-10-2007 the same was read over to the applicant, the applicant had not made any objection at the time of framing of the charge. IN this case PW. 1 has been examined before the trial Court. The proper notice was given to the applicant but the applicant has refused to accept the notice. The applicant is trying to linger on the proceedings whereas the proceedings of the present case may be quashed within a reason able period. The objections raised by the applicant as of post dated cheque given by the applicant as a security when he took the loan of Rs. 25,000/-from O. P. No. 2 is not constituting an offence punishable under Section 138, N. I. Act and some other objections raised by the applicant for quashing the proceeding may be considered by the trial Court and there is no good ground for quashing the pro ceeding, the application filed by the applicant is devoid of merits, the same may be rejected.