DEEPAK S. SARAF Vs. RAJ KUMAR SHARMA

JUDGEMENT

(1.) THIS order will dispose of the above mentioned two petitions, as the same arise out of one order of the learned court below. The facts have been extracted from Criminal Misc. No. M-2011 of 2009.

(2.) PRAYER in the present petition is for quashing of complaint filed by the respondent against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 on account of dishonour of cheque No. 41613 dated 8.9.2007 for a sum of Rs. 31,00,000/- drawn on Global Trust Bank Ltd. Mumbai. The complaint was filed on 26.3.2008, as even in response to the notice, the petitioner failed to clear the debt.

(3.) HEARD learned counsel for the parties and perused the record. No doubt, the respondent-complainant has not mentioned in the complaint regarding the date when the loan was advanced to the petitioner, however, still in my opinion, merely on that basis the complaint cannot be quashed. These issues can very well be gone into by the learned Magistrate on the basis of evidence to be led by the parties which can be appreciated in terms of the settled position of law. All other issues, namely, issuance of cheque of Global Trust Bank Limited in 2007, when it was merged with Oriental Bank of Commerce way back in July, 2004 and as to whether the cheque had been kept as security or not can also be appreciated only after the conclusion of trial when the parties had already led their evidence. However, still considering the fact that the petitioner is resident of Maharashtra and the complaint is pending in the court at Faridabad, in my opinion, to avoid unnecessary harassment to the petitioner on account of his attending every date of hearing, his personal appearance deserves to be exempted. Accordingly, in case an application is moved for the purpose before the court below, it shall consider the same and grant exemption to the peti- tioner from personal appearance on non-effective dates of hearing, subject to such terms and conditions, as may be fixed, however, considering that trial in the complaint is not delayed. Similar facility can also be extended to the re spondent-complainant. For the reasons mentioned above, I do not find any merit in the present petitions. The same are dismissed. However, it is made clear that nothing aforesaid shall effect the merits of the case, which shall be considered and decided by the court below on the basis of evidence to be led by the parties.