MANOJ KUMAR, S/O LATE SH. NIKKA MAL, R/O E-10, HAKKIKAT NAGAR, SAHARANPUR (UP), SH. AMIT Vs. NAVITA CHUG, D/O LATE SH. OM PARKASH

JUDGEMENT

(1.) THIS is a petition under Section 482 Cr.P.C. for quashing proceedings in Case No. 294 -3 of 2009 under section 138 of Negotiable Instruments Act, 1881 , pending in the Court of learned Judicial Magistrate Ist Class, Court No. 3, Shimla. The facts in brief are that Om Parkash had instituted complaint under Section 138 of Negotiable Instruments Act, 1881 (for short, the Act) against the petitioners, on the basis of cheque dated 31.1.2009 amounting to Rs. 15,00,000/ - drawn on Jammu & Kashmir Bank Ltd. Branch Office, Shastri Market, Amritsar. It has been alleged that petitioners No. 1 and 2 were partners/incharge of petitioner No. 3 firm and responsible for the conduct of its business had issued said cheque for discharge of existing legally enforceable liability. The cheque on presentation with the banker for encashment was dishonoured and was returned to the complainant with refusal memo dated 27.7.2009 with remarks "funds insufficient". Notice dated 29.7.2009 was issued but no payment was made and therefore, complaint under Section 138 of the Act was filed.

(2.) THE trial Court took cognizance and issued notice to the petitioners. The learned trial Court put notice of accusation to petitioners No. 1,2 on 14.10.2011 and fixed the case for evidence. The petitioners have prayed for quashing of proceedings on the grounds that complaint is not maintainable, no cause of action accrued within the jurisdiction of Court at Shimla. The Courts at Amritsar alone have jurisdiction. The complaint was filed at Shimla since Om Parkash predecessor of respondent was residing at Shimla. The cheque was drawn on Jammu & Kashmir Bank Ltd. branch office Shastri Market, Amritsar and was dishonoured by the said branch at Amritsar. The presentation of cheque at Shimla and issuance of notice at Shimla do not give rise to cause of action at Shimla. The Court at Shimla has no jurisdiction. In the complaint vague allegations have been made. The complaint is malafide, false and frivolous. There was no transaction between petitioners and Om Parkash, who had no cause of action against the petitioners. The petitioners No. 1 and 3 were residing beyond the jurisdiction of Court at Shimla, no inquiry was conducted by learned Magistrate in terms of Section 202 Cr.P.C. The learned Magistrate has relied upon statement of complainant and documents tendered in evidence but no enquiry was conducted under Section 202(1) Cr.P.C. before issuing process. The submission has been made for quashing the proceedings.

(3.) A copy of complaint has been placed on record. I have gone through the complaint. It has been stated in the complaint that for the discharge of an existing legally enforceable liability, the accused had issued a cheque bearing No. 124408 dated 31.1.2009 payable at the Jammu & Kashmir Bank Limited, B/o Shastri Market, Amritsar for a valuable consideration of Rs. 15,00,000/ - in favour of complainant. The cheque was returned to the complainant with the remarks "insufficient funds". The complainant issued notice dated 29.7.2009 to the accused asking them to make payment on the cheque amount. The accused even after receipt of notice did not make the payment of the cheque amount.