PUSHPA SHARMA Vs. RAJ KUMAR SHARMA

JUDGEMENT

(1.) PUSHPA Sharma has come forward to this Court and moved the present petition under Section 482 of the Code of Criminal Procedure challenging a complaint instituted by Raj Kumar Sharma under Section 138 of the Negotiable instruments Act, 1881 in respect of cheque No. 84/tb/s/oo/24749 dated 29. 12. 1989, which was in the sum of Rs. 10,000/ -.

(2.) PUSHPA Sharma, the petitioner, has alleged that she is running Paranav pushpa Publications at House No. 2336, Sector 23-C, Chandigarh and she obtained a loan of Rs. 1,20,000/- from Mahabir Sharma, the brother of the respondent, and a major part of the loan was repaid and only a sum of Rs. 19,700/- was outstanding. In this regard, she issued two cheques, one of Rs. 10,000/- and another of Rs. 9,700/- both dated 29. 12. 1989. One cheque of rs. 9,700/- was encashed and the controversy remained only regarding the cheque for Rs. 10,000/ -. The petitioner has alleged that she was called to the police Station, Sector 17, Chandigarh and she being a lady did not want that she should be harassed at the Police Station so her husband Dr. M. C. Sharma, made a payment of Rs. 10,000/- to Mr. R. K. Sharma, and a receipt, Annexure p. 1, was also issued by him which also bears the attestation, by Sh. J. U. Sharma. This plea of payment has been made in para 6 of the present petition. The learned counsel for the petitioner has referred to corresponding para 6 of the reply filed by the respondent and it does not contain specific denial regarding complainant's having received a sum of Rs. 10,000/- in case on 3. 5. 1990 in lieu of cheque No. T. B. 0024749 dated 29. 12. 1989, which was the cheque in question. In para 4 of the complaint, it has been alleged that the cheque was returned to the complainant by the Indian Overseas Bank on 21. 6. 1989 and in para 6 thereafter, the complainant has alleged that a legal notice was issued on 29. 6. 1990 (Annexure P. 2 ). In paras No. 9 to 10 of the reply, the dates have not been controverted specifically.

(3.) A perusal of the contention raised on behalf of the petitioner goes to show that in this case, the essential requirements contained in Clauses (b) and (c) of the proviso under Section 138 of the Act have not been fulfilled. The present petition succeeds and the impugned complaint and the summoning order are hereby quashed.