PARMOD KUMAR Vs. SUBODH KUMAR

JUDGEMENT

(1.) THIS revision at the instance of the accused, hereinafter referred to as the petitioner, is directed against the order dated 19. 5. 1996 whereby notice of accusation had been issued to him for there being sufficient grounds to record prima facie case under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') as amended upto date. This complaint was filed by the complainant (hereinafter referred to as the respondent ).

(2.) THE petitioner has challenged the impugned order and has prayed for quashing of the same as, according to him, no case is made out from the facts detailed in the complaint as well as on the basis of the evidence on record against him under Section 138 of the Act.

(3.) IN order to properly appreciate the submissions made on behalf of the parties, it is necessary to narrate the facts of the case. A complaint was filed by the respondent under Section 138 of the Act on the allegations that he and the petitioner are real brothers and they have share in the property of their late father consisting of several rooms at 72, Tilak Road, Dehradun and he visits Dehradun off and on, though it is averred in the complaint that he is a resident of Ward No. 10, Devi Nagar, Paonta sahib. According to the respondent, in the last week of November, 1993, the petitioner had fixed the date of his daughter's marriage. So, he required money and a sum of Rs. 1,00,000/- was demanded by the latter from the former. According to the respondent, the petitioner came to Paonta Sahib where the former could arrange only rs. 53,000/- and paid it to the latter. The petitioner is stated to have assured the respondent to liquidate this amount within 3 months but failed to do the needful and when demand was made by the respondent, a cheque bearing No. 215631 dated 24. 10. 1994 of Punjab National Bank, Tilak Road, Dehradun in the sum of Rs. 53,000/-was issued by the petitioner favouring the respondent. This cheque, when sent for collection by the petitioner through his banker at Paonta Sahib, was returned by the banker of the petitioner with the memo "insufficient funds". Intimation in this behalf was sent by the banker of the petitioner vide its memo dated 8. 12. 1994. At this state, it is necessary to reproduce the relevant averment made by the respondent in complaint filed by him under Section 138 of the Act : "that the complainant issued a notice on dated 10. 12. 1994 through his Advocate shri Ashok Gupta, Advocate Paonta Sahib but there was no effect of the same. That the accused/respondent is not making the payment in spite of the verbal request and reminder. That the cause of action has arisen in favour of the complainant and against the respondent. Moreover, the transaction of the amount by the bankers was held at Paonta sahib so this Court has got the jurisdiction to try and decide this case. It is, therefore, prayed that the accused/respondent may kindly be proceeded U/s. 138 of Negotiable Instrument Act, so that the justice could be imparted to the complainant and the accused/respondent may kindly be dealt with law. "