AMRINDERPAL SINGH Vs. KAWALPREET KAUR

JUDGEMENT

(1.) Challenge in this petition is to the complaint case No. 49 dated 24.11.2009 filed under Section 138 of the Negotiable Instruments Act 1881 (hereinafter referred to as N.I. Act') read with Section 420 IPC (Annexure P-8) on the ground that the Court could not take cognizance of the complaint in the light of Proviso (a) to Section 138 of the N.I. Act. The summoning order, on this basis, could not have been issued by the trial Court, which is dated 30.11.2009 (Annexure P-9).

(2.) It is the contention of the counsel for the petitioner that offence under Section 420 IPC also is not made out as the complainant has already availed of remedy of recovery of the amount due, for which the cheque was issued by the petitioner and there was no intention on the part of the petitioner to cheat the complainant.

(3.) The facts of the case are that as per the complaint, a cheque was issued by the petitioner in favour of the complainant, which is dated 05.04.2009 as per the complainant but 01.04.2009 as per the petitioner. The said cheque was presented by the complainant in the Punjab National Bank on 08.10.2009. The same was returned by the HDFC-drawee bank on that very date i.e. 08.10.2009 'as unpaid' for the reason that the funds were insufficient and there was small alteration in the instructions, which required full signatures of the drawer. On this basis, a legal notice was served on the petitioner on 26.10.2009 and thereafter, when the amount was not paid by the petitioner, complaint dated 24.11.2009 under Section 138 of the N.I. Act and 420 IPC was filed by the complainant before the trial Court. The trial Court, on the basis of the preliminary evidence led by the complainant, issued summons to the petitioner vide order dated 30.11.2009 under Section 138 N.I. Act only, which has been impugned in the present petition.