MAZAHIR HUSSAIN Vs. STATE OF U P

JUDGEMENT

(1.) THIS is an application under section 482 Cr. P. C. to quash the proceedings of complaint case no. 6224 of 2006, Rajani Traders v. Muzahir Hussain under section 138 Negotiable Instruments Act, P. S. Banna Devi, District Aligarh and the summoning order dated 7-11 -2006 passed by the C. J. M. Aligarh in the above complaint.

(2.) THE facts giving rise to this application under section 482 Cr. P. C, are that the complainant opposite party No. . 2 had filed the aforesaid complaint against the accused applicant in" the court of C. J. M , Aligarh on 2-9-20006 with these allegations that the accused had purchased cloth from the shop of the complainant opposite party No. 2 on 31-3-2006. In respect of the above transaction, bill No. 2742 had been issued to the accused applicant; and for payment of that bill, the accused applicant issued Cheque no. 868315 dated 29-5-2006 for Ripees 26,000/- drawn on Allahabad Bank, Aligarh muslim University Branch, Aligarh, and another cheque No. 868316 dated 29-7-2006 for Rs. 9808/- drawn on the same Bank. The complainant deposited the first Cheque in his Account in the Bank of India but the cheque was returned back for insufficiency of funds as per information received by him from the Bank of India on 15-6-06. The second cheque was also deposited in the Bank but it was also returned back on 11-8-06 with the same information. Then he gave a notice to the accused on 12-8-06 by registered post requiring the accused to pay the amount by 15-8-06 along with 24 % interest per annum. It was further provided that in case of failure to pay the amount, the complainant shall file a case under section 420 i. P. C. The notice was received by the accused applicant, and he orally told the complainant that sufficient amount has been deposited in his Account and so the Cheque should be again sent for payment. Then , the complainant again sent the first Cheque for payment on 22-8-06 but it was again returned back on 25-8-06 on the same ground of insufficiency of funds. Then the complainant again issued a notice to the accused applicant on 26-8-06 mentioning the fact of dishonour of both the Cheques and asked him to pay the entire amount of both the Cheques along with 24% interest with late fee charges and the charges of dishonour of the Cheques. This notice was sent by registered post as well as under Certificate of posting. The registered notice was received by the accused but he did not pay any amount. The accused had also given in writing on 31-3-2006 that he had received bill no. 2742 for Rs. 35,808/- from the, complainant and that he was making payment of above amount through the aforesaid two cheques, referred to above. Thus, he had apparently committed fraud with the complainant, and therefore it was prayed that action should be taken against him under section 138 Negotiable Instruments Act and under section 42o I. P. C.

(3.) THE complainant examined himself before the Magistrate under section 200 Cr. P. C. and also filed copy of bill No: 2742, the aforesaid two; Cheques, copy of the notice and the receipt Of its registration.