ANTIMA JOSHI Vs. SANDHAYA FINANCE LIMITED

JUDGEMENT

(1.) The petitioner has filed this petition Under Section 482 of the Code of Criminal Procedure for quashing/dropping the entire proceedings initiated against her on a complaint filed by the respondent Under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act") and for setting aside the order dated 20.12.2005 passed by Judicial Magistrate 1st Class, Hisar, whereby the application filed by the petitioner for re-calling the summoning order dated 16.4.2004 and the order dated 4.6.2005 stating the substance of accusation (charge) to the petitioner has been dismissed.

(2.) In this case, the petitioner stood as a guarantor of Shyam Bajpai and Chander Kanta who had taken a loan of Rs. 4,00,000/- from the complainant company. These loanees committed default in payment of installment as undertaken by them in the agreement. In terms of the agreement, the petitioner, being guarantor, was liable to pay the loan amount in case of default by loanees. In discharge of that liability, the petitioner endorsed the cheque in question for an amount of Rs. 2,40,00/- in favour of the complainant company. The complainant company, as holder in due course, presented the said cheque to the drawee bank through the complainant's bank. The same was dishonoured on account of insufficient funds, as intimated vide dishonour memo dated 17.1.2004. Hence, the complaint was filed, in which the petitioner was summoned vide order dated 16.4.2004. The petitioner appeared before the Judicial Magistrate on 3.5.2005 and was released on bail and the case was adjourned for 4.6.2005 for compromise. On 4.6.2005, the compromise could not be arrived at between the parties and notice of accusation was served upon the petitioner to which she did not plead guilty and claimed trial. Thereafter, the case was adjourned to 25.10.2005 for evidence of the complainant.

(3.) Subsequently, on the adjourned date i.e. on 25.10.2005, the petitioner filed an application for re-calling the summoning order as well as order dated 4.6.2004, whereby the particular of accusation was stated to her, alleging therein that on 4.6.2005, notice of accusation was served without hearing her, and her signatures were taken by the Reader on a blank paper, on the instructions of the Presiding Officer, on which the contents of particulars of accusation were written. It was alleged that the charge/notice was also not framed in her presence nor the contents of the same were read over to her. It was also alleged that in the said order, the presence of her counsel i.e. Sh. Anand Shankar was marked, but he was not present on that day in the Court. Rather, he was present in Delhi and attended the Court proceedings there. On merits, it was alleged that the petitioner was mere a previous holder in respect of the cheque in question, therefore, the proceedings Under Section 138 of the Act should not have been initiated against her.