BHANWAR LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE instant miscellaneous petition has been filed by the petitioner complainant against the order dt 13.01.2010 passed by the learned Sessions Judge, Merta whereby the Revisional Court quashed the order dt. 09.04.2008 passed by the Judicial Magistrate, Degana taking cognizance against the respondent for the offence under Sec. 138 of the Negotiable Instruments Act. Learned counsel for the petitioner submits that the revisional Court exercised jurisdiction erroneously and has interfered in the well reasoned order taking cognizance passed by the learned Magistrate which was based on the material available on record. Learned counsel submits that the petitioner filed a complaint against the respondent No. 2 under Sec. 138 of the N.I. Act with the allegation that a cheque of Rs. 9 lacs issued by the accused to the petitioner bounced on presentation. Learned counsel submits that after following due procedure for issuance of notice etc., the petitioner submitted a complaint and filed an affidavit in support of the complaint. Thereafter pre -cognizance statement of the petitioner was recorded and the learned Magistrate on the basis of said material issued process against the accused for valid and justifiable reason. Learned counsel submits that the learned Revisional Court has interfered in the well reasoned order taking cognizance by exercising jurisdiction as if it was finally deciding the criminal trial. Learned counsel submits that the ground which has been utilized by the Revisional Court for reversing the order taking cognizance is absolutely erroneous and contrary to the decision of the Apex Court in the case of Modi Cements Ltd. vs. Kuchil Kumar Nandi, reported in : AIR 1998 SC 1057.

(2.) PER contra Ms. Deepika Vyas, learned counsel for the respondent No. 2 submits that the Revisional Court has justly exercised jurisdiction for quashing the cognizance order. Learned counsel submits that the payment of cheque was stopped by the respondent will in advance, therefore, it cannot be said that offence under Sec. 138 of the N.I. Act was made out against the respondent.

(3.) THUS , it is apparent that both the points of law whereupon the Revisional Court's order is based have been decided contrary to the correct position of law. Thus, the miscellaneous petition deserves to be accepted and is hereby allowed. The order passed by the learned Sessions Judge, Merta dt. 13.01.2010 is set aside and the order dt. 09.04.2008 passed by the learned Judicial Magistrate. Degana is restored. The parties shall appear before the trial Court on or before 15.02.2013 whereafter the trial Court shall proceed and decide the case expeditiously in accordance with law. Record be sent back forthwith.