RAVINDER SINGH Vs. MOHINDER PAL

JUDGEMENT

(1.) CASE called several times. None responds for the petitioner. Mr. Gupta appears for the respondent.

(2.) THIS is a petition filed under Section 482 Cr. P. C. seeking the quashing of complaint annexure P1 and the summoning order annexure P2 and subsequent proceedings thereon being illegal and misuse and abuse of the process of the court, besides being against equity, fair play and natural justice. The criminal complaint No. 44 of 1992 was filed in the court of Judicial Magistrate 1st Class, Fatehgarh Sahib by respondent mohinder Pal against the petitioner Ravinder Singh under Section 138 of negotiable Instruments Act, 1881 (for shot the Act 1988) read with Section 420 IPC, a copy of the criminal complaint has been placed on record as annexure P1. The allegations made in the complaint, briefly stated, are that the accused/petitioner borrowed a sum of Rs. 10,000/- from the respondent- complaint on 25. 6. 1992 and issued a cheque for repayment of the said amount in favour of the respondent-complainant drawn on Punjab National Bank, Sirhind Mandi being cheque No. QQC 137840 dated 25. 9. 92. The said cheque was presented for encashment by the complainant-respondent in the State Bank of Patiala, Sirhind Mandi. The cheque was returned by the Punjab National Bank with the memo showing that the payment was stopped by the drawer. The said memo was received by the complainant-respondent on 6. 10. 92. Thereafter, the respondent served a legal notice dated 14. 10. 1992 on the petitioner-accused which was duly served on him on 20. 10. 1992. It was alleged in the complaint that despite service of legal notice the payment of the amount covered by the disputed cheque was not made nor any reply was sent. It was alleged that the petitioner-accused has committed an offence under Section 138 of the aforesaid Act and also under Section 420 I. P. C. This complaint was filed on 3. 11. 1992. Learned J. M. I. C. Fatehgarh Sahib by order dated 8. 10. 1993 ordered for the summoning of the accused-petitioner to stand trial fixing 1. 12. 1993. Copy of the order passed by the learned magistrate has been annexed with the petition as annexure P2. The copy of the memorandum issued by the Punjab National Bank, Sirhind has also been annexed as annexure P3. The petitioner seeks the quashing of the criminal complaint/summoning order and consequential proceedings on the ground that the disputed cheque was returned as unpaid for payment stopped by the drawer which did not fall within the provisions of Section 138 of the Act 1988. It was also alleged that the respondent-complainant had not complied with the proviso (b) of Section 138 as he has failed to issue notice within 15 days of the receipt of information of the dishonouring of the cheque of the Bank. The cheque was returned on 29. 9. 1992, whereas the notice was issued on 19. 10. 1992. The averments made by the respondent that he had received the intimations 6. 10. 1992 was denied. It was also mentioned that the respondent-complainant is not the holder of the cheque in due course as referred to in proviso (b) of the Act 1988. It was also denied that the petitioner issued the alleged cheque. The learned counsel for the respondent, on the other hand, contended that the bouncing of the cheque upon the instructions of the drawer stopping the payment has been held to be duly covered under Section 138 of the Act 1988 and he has placed reliance on the judgment of M/s. Electronic Trade and Technology Development Corporation Ltd. , secunderabad v. M/s. Indian Technologists and Engineers (Electronics) Pvt. Ltd. , and ann, J. T. 1996 (1) S. C. 643 : [vol. 2 DCTC 367]. The Hon'ble supreme Court has held that once the cheque has been drawn and issued to the payee and the payee has presented the cheque and thereafter, if any instructions are issued to the Bank for non-payment and the cheque is returned to the payee with such an endorsement it amounts to dishonour of the cheque and it comes within the meaning of section 138 of the aforesaid Act. . It has been averred by the respondent in the complaint that he sent a notice within 15 days of the receipt of the information from the Bank regarding the cheque being returned unpaid for stopping of payment by the drawer. It has also been averred in the complaint that after service of the legal and statutory notice, no payment was offered by the accused/petitioner. These are all question of fact as to whether the complainant-respondent received the information regarding the bouncing of the disputed cheque on the particular date i. e. 6. 10. 1992 or prior to it. It is also a question of fact that as to whether the disputed cheque has been issued by the petitioner-accused and whether the complainant- respondent is the holder of he cheque in due course within the meaning of Section 138 of the Act. At this stage, these facts cannot be assumed. Learned Judicial Magistrate after going through the complaint and the evidence of the complainant passed the order of summoning and there is nothing inherently wrong in law in the order of summoning. Prima facie offence under Section 138 of the Act, 1988 has been shown to have been committed by the accused- petitioner. Resultantly, this court will not in a petition under Section 482 Cr. P. C. , at this stage, go into in all these questions which depend upon the recording of the evidence and will not examine the genuineness or otherwise the allegations made in the complaint as has been held by the Hon'ble Supreme Court in the case of State of U. P v. O. P. Sharma, J. T. 1996 (2) S. C. 488 and also in State of tamil Naidu v. Thirukkural Perumal, 1995 S. C. Cases (Crl) 387. In view of what has been discussed above, this petition is devoid of any substance and is dismissed. Petition dismissed.