ARUN KUMAR GUPTA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By this criminal misc. petition, the petitioner has challenged the order dated 5.3.2009 passed by the learned Additional Chief Judicial Magistrate No. 8, Jaipur city, Jaipur in Complaint Case No. 328/2009 (Padam Prakash Khandaka Jewelers v. Arun Kumar) whereby cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 was taken against the petitioner and that of the order dated 22.6.2010 passed by the learned Additional Sessions Judge No. 3, Jaipur city, Jaipur in Criminal Revision No. 8/2010 whereby the revision petition filed by the petitioner was dismissed.

(2.) Briefly stated the facts for the disposal of the present petition are that respondent No. 2- M/s Padam Prakash Khandaka Jewelers filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (here-in-after to be referred as, 'the Act') in the court of Additional Chief judicial Magistrate No. 8, Jaipur city, Jaipur. It was, inter-alia, alleged in the complaint that the petitioner purchased goods on credit from the complainant firm and gave a cheque of Rs. 1,70,000/- which was produced in the bank by the firm but was dishonoured with the remark 'insufficiency of funds'. A notice was sent to the petitioner. Inspite of notice, no payment was made. The learned trial court took cognizance in the matter vide order dated 5.3.2009. The petitioner having felt aggrieved preferred a revision petition but without any success. Hence, the present petition has been filed.

(3.) It has been the contention of the learned Counsel for the petitioner that cognizance of offence under Section 138 of the Act has been taken without recording statement under Section 200 and 202 Cr.P.C. and, therefore, suffers from legal infirmity and requires to be quashed and set aside. It is also contended that the cognizance has been taken on the basis of affidavit only which is against the mandatory provisions of law. It is further contended that the revisional court has also not properly appreciated the matter.