ANUP KUMAR Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) HEARD the learned counsel for the petitioner and learned counsel for the State. No one appears oh behalf of the complainant opposite party No. 2, in spite of repeated calls, though the name of learned counsel is appearing in the list. Even on 25.6.2014 no one had appeared for the complainant opposite party No. 2, in spite of repeated calls and in order to give a chance to the learned counsel for the opposite party No. 2, the case was adjourned for today. As stated above, today also no one appears on behalf of the complainant. The petitioner is aggrieved by the order dated 21.6.2001 passed by Sri K. Kumar, learned Judicial Magistrate, 1st Class, Hazaribag in Complaint Case No. 444 of 2001/T.R. No. 154 of 2001, whereby on the basis of the statement made in the complaint, and the statement of the complainant on solemn affirmation, the prima -facie offence under Section 138 of the Negotiable instrument Act (hereinafter referred to as the 'Act') has been found against the petitioner and summon was ordered to be issued against him for facing the trial.

(2.) BY order dated 11.4.2002 this application was admitted and further proceeding against the petitioner was stayed. Upon notice the complainant opposite party No. 2 appeared and filed counter affidavit.

(3.) LEARNED counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal, in as much as, the payment was stopped by the petitioner and in that view of the matter the offence under Section 138 of the Act shall not be attracted in the case, as according to that section, the offence is made out only when there is insufficient amount in the account to honour the cheque, or cheque amount exceeds the amount arranged to be paid from that account by an agreement made between that bank and the account holder. Learned counsel accordingly, submitted that since this matter relates to stopping the payment by the petitioner, Section 138 of the Negotiable Instrument Act shall not be attracted in the case. It is further submitted by learned counsel for the petitioner that in any event, according to the complaint petition itself, the cheque was issued as an earnest money, but the deal did not finalise between the parties and accordingly, there was no legally enforceable debt or other liability between the complainant and the petitioner and on this count also no offence under Section 138 of the Act is made out against the petitioner.