ANITA Vs. ASHARAM

JUDGEMENT

(1.) This petition is under Section 482 of Cr.P.C. for quashing the order dated 2.8.2010 passed by JMFC, Gwalior, in Criminal Complaint Case No.11750/2010 and further proceeding of the said case, whereby cognizance has been taken against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (in short the Act).

(2.) Briefly stated the facts of the case are that complainant/respondent Asharam has filed a criminal complaint alleging that petitioner is engaged in sale of medicines in the name of Pharma Agency. The petitioner has given power of attorney to her husband for doing the aforesaid business. It is further alleged that the complainant has family relations with the petitioner and her husband. The petitioner and her husband were in need of money for purchasing house, therefore, they had taken a loan of Rs. fifteen lacs from the respondent/ complainant on different dates. When the respondent/complainant asked the petitioner to refund the money, petitioner gave a cheque bearing No.973789 dated 29.4.10 of Rs. fifteen lacs to the respondent/complainant after signing it in presence of Nirmal Kumar Agrawal and assured the respondent/complainant that she will keep sufficient fund in her account. It is further alleged that respondent/complainant presented the said cheque in his account in Punjab National Bank, Branch Gwalior, but the same was dishonoured with a note of insufficient fund on 26.6.10. Thereafter, the respondent/complainant sent notice by registered post as well as by UPC to the petitioner. The registered notice has been received by the petitioner on 7.7.10 and the notice sent by UPC has also also received by the petitioner. It is further alleged that in spite of receipt of notice, the petitioner has not paid the amount within fifteen days. The petitioner was fully aware at the time of giving cheque that there shall be no sufficient fund in her account and hence the cheque will not be encashed. Thus, the petitioner has committed the offence punishable under Section 138 of the Act. On the basis of the aforesaid complaint, the learned JMFC, Gwalior, vide order dated 2.8.10 holding that there is prima facie ground to proceed, directed that complaint be registered and the petitioner be summoned. Being aggrieved, this petition has been filed.

(3.) It is submitted by learned counsel for the petitioner that the petitioner has never issued any cheque to the complainant. The husband of the petitioner is carrying the wholesale business of medicines in the name of Farma Traders. Earlier, Amit Gupta, who is the nephew of the petitioner, had stolen several cheques of the petitioner from the shop. The husband of the petitioner lodged a written report at police Station, Kotwali, mentioning numbers of all the cheques in the report. The matter was inquired into and after enquiry FIR at Crime No.188/10 under Sections 420, 120-B, 34 of IPC was registered against Amit Gupta and complainant Asharam Mavai. After investigation, charge-sheet was filed and Amit Gupta and complainant were tried in Sessions Trial No.133/11. It is further submitted that instant complaint has been filed in counter-blast to the aforesaid Sessions Trial. In sessions trial No.133/11, handwriting expert has examined the signature of petitioner Smt. Anita on the disputed cheque with her specimen signature and opined that there is dissimilarity between the two. The allegations levelled in the complaint against the petitioner are totally false and no offence is made out against the petitioner. It is prayed that proceedings of criminal complaint case No.11750/10 pending in the Court of JMFC, Gwalior, be quashed.