SAMAR SARMAH Vs. VIVEK AGARWALA

JUDGEMENT

(1.) (Oral) The present one is the third petition in this Court under Section 482 of the Code of Criminal Procedure ['CrPC'] by the petitioner, who is sought to be proceeded against for the offence under Section 138 of the Negotiable Instruments Act, 1881 [hereinafter referred to as "the NI Act"] in the Court of Chief Judicial Magistrate, West Garo Hills, Tura in C.R. Case No.266 of 2015.

(2.) Shorn of unnecessary details, relevant aspects of the matter are as follows: The complainant/respondent has filed the complaint case aforesaid under Sections 138/142 of the NI Act while alleging dishonour of two cheques issued by the present petitioner, the particulars whereof are as under :

(3.) The complainant/respondent submitted in his complaint that the aforesaid cheque bearing number 892545 dated 26.05.2015, when presented for collection, was returned unpaid by the petitioner's Banker with the remark "insufficient funds" under the Cheque Returning Memo dated 28.05.2015. The respondent further submitted that the other cheque bearing number 125335 dated 02.06.2015 for an amount of Rs.16,50,000/- was also returned unpaid by the petitioner's Banker with the remarks "opening balance insufficient". The respondent did not state in his complaint the date of Returning Memo concerning this cheque number 125335 but the learned counsel for the petitioner has shown the relevant part of the document during the course of hearing; and it remains rather indisputable that the said Cheque Returning Memo was issued by the petitioner's Banker on 10.06.2015. This particular date of Returning Memo of cheque number 125335 carries relevance in this matter, as shall be noticed a little later. 4. The respondent asserted in his complaint that he verbally informed the petitioner about fate of the cheque but upon the petitioner paying no heed to the request, he was compelled to serve a notice through the lawyer on 11.06.2015, calling upon the petitioner to make payment of the dishonoured 'cheque' within a period of 15 days from the date of receipt of the notice. The assertions of the respondent, as occurring in paragraph 10 of the complaint, for their relevance, are reproduced as under:-