KULBIR SINGH UBEROI Vs. KUMAR INDUSTRIES

JUDGEMENT

(1.) The petitioners have invoked the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (in short 'the Code') and have prayed for quashing of the complaint dated 25-10-2005 (Annexure P-1) under the provisions of Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as'the Act) and the consequent summoning order dated 25-10-2005 (Annexure P-5) passed by the learned Addl. Chief Judicial Magistrate, Sonepat.

(2.) A complaint was preferred against the present petitioners by the respondent under Section 138 of the Act. The allegations made therein were that a cheque had been issued by the petitioners bearing No. 046173 dated 3-3-2005 for a sum of Rs. 2 lakh drawn on the State Bank of Bikaner and Jaipur, Faridabad. On presentation the cheque is said to have been dishonoured. After the preliminary evidence was adduced by the. respondent by way of an affidavit and a statement of Ashish Gupta, his attorney, the Court of Addl. Chief Judicial Magistrate, Sonepat summoned the petitioners vide order dated 25-10-2005 (Annexure P-5).

(3.) While seeking quashing of the complaint and the summoning order aforesaid, it was contended by the learned counsel for the petitioners that the complaint was malicious as on the issuance of a legal notice dated 20-9-2005 the petitioners had submitted a reply dated 29-9-2005 which is no record as Annexure P-3. It has been submitted by them in this reply that cheque No. 046173 dated 3-3-2005 of an amount of Rs. 2 lakh had been presented by the respondent-complainant in March, 2005 and the same was dishonoured, but immediately on receiving the information the petitioners had issued another cheque bearing No. 00046441 dated 23-3-2005 in lieu of the earlier cheque for a like amount drawn on the same bank. The petitioners had also informed the respondent through telephonic talk and had asked for the return of the earlier cheque which had been dishonoured. Instead of returning the cheque the respondent had resorted to the filing of the complaint which was an abuse of the process of law because the amount had already stood paid and the accounts had been settled. The alleged statement of accounts of the complainant was also filed along with this petition as Annexure P-4/A. The summoning order was also assailed on the ground that the same was cryptic and had not given any reasons while issuing the process against the petitioners especially in view of the fact that the reply to the notice given by the petitioners on 29-9-2005 was a part of the record before the trial Court. So, in view of this it was incumbent upon the Court of Addl. Chief Judicial Magistrate to have met the case of the petitioners. Reliance was placed on Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, (1998) 5 SCC 749 : (1998 Cri LJ 1).