MANMOHAN CHOUDHARY Vs. KRISHAN KUMAR

JUDGEMENT

(1.) THROUGH a complaint under section 138 of Negotiable Instruments Act, 1881 instituted before Trial Magistrate on 9th May 2005 the respondent alleged commission of offence thereunder against petitioner hereinabove on the ground that after issuing cheque No.4130529 dated 10.11.2004 in his favour for an amount of Rs.2.86 lacs in partial payment of Rs.13.00 lacs as purchase money of his land, the petitioner accused instructed the Bank to stop payments under the cheque due to which the cheque could not be cashed which was brought to his notice who requested him to present the cheque for encashment after some time where after it was again refused for the same reason. On receipt of complaint the learned Magistrate below took cognizance under section 138 of Negotiable Instrument Act and after recording preliminary statement of respondent complainant directed issuance of process to him which is continuing till date.

(2.) AGGRIEVED the petitioner has invoked jurisdiction of this Court seeking quashment of the complaint and cognizance taken by the Magistrate below mainly on the ground that on basis of allegations leveled in the memo of complaint an offence under section 138 Negotiable Instrument Act was not made out as none of the ingredients thereof was forthcoming from the set of allegations. During course of submissions petitioners counsel reiterated the contents of petition has also referred to the relevant provision and the contents of complaint. None is however present to be head for other side.

(3.) I have heard learned counsel and considered the matter. Perusal of the memo of complaint instituted by respondent complainant before the Trial Magistrate, reveals that while alleging that petitioner accused agreed to purchase a piece of land from him and his brother on 19.10.2004 for a total amount of Rs. 13,82,500/ - and made some payments and issued the above said cheque for another part of payment complained that on being presented the cheque could not be cashed as the same was returned for the reason that payment thereof had been stopped by petitioner accused. On basis of that set of allegations commission of offence under section 138 Negotiable Instrument Act by petitioner is required to be assessed.