LALLU LAL AGRAWAL Vs. DAMODAR PRASAD GUPTA

JUDGEMENT

(1.) WITH the consent of the parties the case was heard at this stage.

(2.) BRIEFLY stated the facts of the present case are that the petitioner had delivered a cheque for Rs. 10,000/- to non-petitioner Damodar Prasad Gupta on 15. 1. 1994. The said cheque was presented by Damodar Prasad in the Bank of en- cashment but the same could not be got encashed for in-sufficiency of amount in the account of the petitioner. Damodar Prasad Gupta, non- petitioner thereafter again presented the cheque in the Bank for encashment on 30. 3. 1994 and 22. 4. 1994 but the same could not be encashed for the same reason. Thereafter he delivered statutory notice u/s. 138 of the negotiable Instruments Act on 29. 4. 1994 but since the petitioner made no payment to him of the amount of the Cheque, he filed a complaint on 31. 5. 1994 against the petitioner in the Court of the Learned Magistrate. After putting in appearance the complainant moved an application before the learned Magistrate requiring him to cancel the order of taking cognizance of the offence u/s. 138 Cr. P. C. against him and summoning him as accused. His conten- tion was that he had delivered a second cheque to Damodar Prasad Gupta on 20. 1. 94 which was got encashed by him and, therefore, the complainant had no cause of action against him. His another contention was that the cause of action to file a complaint against the petitioner arose and accrued to the non-petitioner when the cheque was dishonoured or not encashed on 15. 1. 1994 but since the non-peti- tioner did not file a complaint against the petitioner after the rejection of cheque on 15. 1. 1994, this complaint was not maintainable on the basis of subsequent refusals by the Bank made on 30. 3. 1994 and 22. 4. 1994 to encash the cheque. By his impugned order dated 23. 9. 1995 the learned Magistrate rejected petitioner's said application. Hence this petition u/s. 482 Cr. P. C.

(3.) INCIDENTALLY it was also brought to my notice that the petitioner has moved an application u/s. 311 requesting the recall of the non-petitioner for further cross-examination as in his earlier examination he appears to have stated that in his account a receipt of Rs. 10,000/- is reflected. It is for the Magistrate to decide such application by an appropriate order. Since the non-petitioner denied to have received any payment for the cheque issued to him, it is yet to be established whether the alleged entry of Rs. 10,000/- in the account of the non- petitioner relates to the liability sought to have been discharged by the petitioner by issuing cheque dated 15. 1. 1994 to the non-petitioner. Payment of cheque dated 20. 1. 1994 also is stated to be a disputed fact. No evidence in that behalf appears to have been placed by the petitioner before the learned Magistrate. Under such circumstance the Magistrate was justified in not recalling the order of cognizance and to have directed the decision on that issue to be given after recording evidence at the trial.