(1.) SMT. Shakti Bhakoo, petitioner seeks quashing of the complaint dated 2. 5. 2000 (Annexure-P. 5) filed by the respondent under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and the summoning order dated 17. 7. 2000 (Annexure-P. 6) passed by the Judicial Magistrate 1st Class, ludhiana and the subsequent proceedings taken therein.
(2.) IN order to decide the controversy, a few facts which led to the filing of the complaint against the petitioner need to be noticed. Varun khemka, complainant is the proprietor of his firm M/s. Palita Enterprises, bazar Kharadian, Ludhiana. Anoop Bhakoo and his wife Smt. Shakti bhakoo arrayed as accused Nos. 2 and 3 in the complaint had been running a partnership business under the name and style of M/s, Sutlej knitwear having their office at 228-A, Industrial Area 'a', Ludhiana, arrayed as accused No. 1 in the complaint. The aforesaid concern through accused Nos. 2 and 3 had been dealing with the complainant (respondent herein ). Accused No. l through accused Nos. 2 and 3 had been purchasing yarn from the firm of the complainant. In order to discharge the liability for the yarn purchased by accused No. l, cheque. No. 148197 dated 8. 11. 1999 for Rs. 25. 000/- drawn on Central Bank of India, ludhiana was issued by Anoop Bhakoo, accused No. 2 in the presence of Smt. Shakti Bhakoo in favour of the complainant. In the presence of smt. Shakti Bhakoo, accused No. 2 had assured the complainant that the cheque would be encashed on presentation in the Bank. Acting on this assurance, the cheque in question was presented on 9. 11. 1999 through the Bank for encashment and collection but it was returned as unpaid. The complainant apprised accused Nos. 2 and 3 about the fate of the cheque, who made a request to the complainant to present the cheque again in the last week of March, 2000. The cheque was again presented on 29. 3. 2000 for encashment within the period of its validity but the central Bank of India returned the cheque as unpaid vide memo dated 29. 3. 2000 for the reasons stated as "exceeds arrangements" which meant there were insufficient funds in Account No. 200001 of accused No. 1 maintained by accused No. 2 with the Bank. On receipt of intimation from the Bank, a demand notice in terms of the requirement of Section 138-B of the Act was sent to accused No. l on 8. 4. 2000 to make the payment of the due amount within 15 days but the accused managed to secure a false report on the notice and, therefore, another demand notice through registered post was sent. In spile of the demand made no payment was made. Hence, the complaint was filed.
(3.) IN support of the allegations made in the complaint, the complainant appeared as PW-1 and produced on record documents viz. original cheque Ex. P. 1. memo dated 9. 11. 1999 Ex. P. 2, memo dated 29. 3. 2000 Ex. P. 3, carbon copy of demand notices Ex. P. 4 to Ex. P. 6, postal receipts of the registered mail Ex. P. 7 to Ex. P. 9, original inland letters through which demand notices were sent to each of the accused individually Ex. P. 7 to Ex. P. 9 and original inland letters through which the demand notices were sent Ex. P. 10 to Ex. 12. Taking into account oral as well as documentary evidence, the learned Judicial Magistrate 1st class, Ludhiana, summoned accused Nos. 2 and 3 to face trial under section 138 of the Act as per his order dated 17. 7. 2000. Hence, this petition for quashing of the complainant and the summoning order.