JAYAKARAN AGARWAL Vs. YOGEANDER HANS

JUDGEMENT

(1.) Accused in I.C.C. No. 6 of 2001 of the Court of S.D.J.M. Bhubanswar is the petitioner in this application under Section 482, Cr.P.C. with the prayer to quash the said proceeding. The complainant is the opposite party.

(2.) Complainant/ opposite party instituted the above noted complaint with the allegation that in due discharge of debt incurred due to business transaction the petitioner issued a cheque for Rs. 38,635.00 drawn on Indian Oversees Bank, Rayagada and that was made in favour of the opposite party on 10-10-2000. The opposite party presented the same, for collection, to his banker i.e. Oriental Bank of Commerce, Sahidnagar branch on 14-10-2000. On 3-11-2000 the drawee bank returned the cheque, with the endorsement of 'insufficient fund' and the opposite party was intimated about that fact on 10-11-2000. Thereafter, the opposite party issued the statutory notice as provided in Clause (b) of the proviso in Section 138 of the Negotiable Instruments Act, 1881 (in short, 'the Act') and sent the same by registered post with A/D on 17-11-2000. The A/D was received by him on 22-11-2000 with due acknowledgement of receipt. Since the payment was not made within the period of 15 days thereafter i.e. by 7-12-2000 the opposite party filed the aforesaid complaint on 3-1-2001 in accordance with the provisions in Section 142 of the Act. Without disputing to the aforesaid factual assertion made by the opposite party in his complaint and the initial statement the petitioner has claimed for quashing of the proceeding on the ground that petitioner is no way connected with M/s. Shanti Agency which belongs to his brother-in-law nor he issued the cheque and therefore his liability under Section 138 of the Act is not made out. In that respect petitioner has annexed Form No. III issued by the Orissa Sales Tax Authority vide Annexure 2 to show that in fact one Omprakash Jain is the proprietor of M/s. Shanti Agency. The other document which he has annexed to the application under Section 482, Cr.P.C. and as per the Misc. Case No. 1297 of 2001 in the present context are of no relevance.

(3.) While reiterating his stand that the petitioner is the drawer of the cheque, the opposite party has argued that the complaint is not liable to be quashed at its threshold when the contention of the petitioner requires evidence to be adduced in support of the innocency of the petitioner and moreso when the complainant and the statement of the complainant recorded under Section 200, Cr.P.C. besides the documents filed makes out a prima facie case for the offence alleged. In that respect Mr. P.K. Ray, learned counsel for the opposite party places reliance on the cases of Hiten P. Dalal v. Bratindranath Banerjee, 2001 (5) Supreme 49 regarding the statutory presumption which is available in favour of the complainant in a case of the present nature and S.M. Datta v. State of Gujarat, 2001 (6) Supreme 408 on the contention that a criminal proceeding should not be at its initial stage when prima facie case is available against the accused.