Servesh Kumar Gupta, J.@mdashBy means of this petition, prayer has been made to quash the order of cognizance dated 17.3.2006 as well as the entire proceedings of Criminal Complaint Case No. 43/2006, Soorvir Singh v. Rajendra Singh, pending before the Special Judicial Magistrate, Tehri Garhwal. By the said order of cognizance, the petitioner has been summoned to stand trial for the offence u/s 138 of the Negotiable Instruments Act (for brevity, hereinafter called as the ''Act''). It is pertinent to mention that none has turned up on behalf of the complainant/respondent no. 2 despite sufficient service; neither any counter affidavit has been filed on his behalf. So, this Court extended hearing to learned Counsel for the petitioner and learned Brief Holder for the State.
2. It transpires that a complaint was filed by Mr. Soorvir Singh Negi (respondent no. 2) against the petitioner on 6.3.2006 with the allegation that a debt of Rs. 4,09,000/- was due to payable by Mr. Rejendra Kumar Singhal to the complainant, wherefor the petitioner issued a cheque bearing no. 263336 drawn at Bank of Baroda, Rishikesh Branch, pertaining to his Savings Account No. 3584. When the said cheque was submitted for encashment by Mr. Negi through his banker State Bank of India, Borari Branch, District Tehri Garhwal, the same was dishonoured by concerned bank due to insufficient fund in the account of the drawer of the cheque. The memo of the bank along with the unpaid cheque was received by Mr. Negi on 21.12.2005. Thereafter Mr. Negi issued a notice as envisaged u/s 138(b) of the Act to Mr. Singhal, which was deliberately not received by Mr. Singhal. So, the notice was returned back to Mr. Negi, who subsequently filed the impugned complaint against Mr. Singhal for the offences punishable u/s 138 of the Act read with Section 420 IPC.
3. The complainant, Mr. Negi, got himself examined u/s 200 CrPC. Thereafter the learned Magistrate passed the impugned order of cognizance dated 17.3.2006 asking the petitioner to stand trial for the offence u/s 138 of the Act. However, the learned Magistrate did not find sufficient cause to summon the accused petitioner for the offence u/s 420 IPC and dismissed the complaint u/s 203 CrPC. Feeling disgruntled, the accused petitioner Mr. Singhal has come up before this Court by filing this petition u/s 482 CrPC.
4. Having heard learned Counsel for the petitioner and on going through the papers on record, it is evident that no reason has been assigned by the complainant Mr. Negi as to the cause of delay in submitting the cheque, in question, for encashment. The said cheque was issued on 25.9.2005, while the same was returned upaid by the bank on 12.12.2005 along with a memo of dishonourment. The period between 25.9.2005 and 12.12.2005, which is almost more than two and half months, itself indicates that certain facts have been concealed by Mr. Negi while making the averments in his complaint. Further, it has been concealed as to when he submitted the cheque for encashment through his banker State Bank of India, Borari Branch, Rishikesh. It has also been concealed that as to when he sent the notice as envisaged u/s 138(b) of the Act, nay he has also concealed as to when this letter/notice was received undelivered by Mr. Negi. It has nowhere been stated by Mr. Negi in his complaint as to how he presumed the date 31.1.2006 as to the crucial date when Mr. Singhal came to knew the contents of the notice so sent by Mr. Negi.
5. Besides, it has been contended on behalf of the applicant petitioner that the list of witnesses was submitted by Mr. Negi on 17.3.2006 in the trial court, which discloses only the name of Mr. Soorvir Singh Negi (complainant himself) and an employee of the concerned bank (without naming anyone). When the statement of Mr. Singhal was recorded by the trial court u/s 251 CrPC on 3.11.2006, he categorically stated that in his office, one boy Santosh Kukreti was working, with whom Mr. Singhal had left his cheque book which also contained some blank cheques duly signed by him, and the complainant, in connivance with Mr. Santosh Kukreti, got the impugned cheque which he subsequently misused resulting in initiation of the impugned complaint. No sooner did this fact was revealed by Mr. Rajendra Singh Singhal in his statement u/s 251 CrPC, an additional list of witness was filed by Mr. Negi on 24.5.2007 stating the name of Santosh Mohan Kukreti as his witness to be examined in the court.
6. This Court does not find any averment in the complaint regarding the particular dates of the events, which have not been mentioned by Mr. Negi while instituting the complaint. The dates as to when the cheque was submitted in the bank, when the notice was sent u/s 138(b) of the Act and when the same was received undelivered have not been mentioned in the complaint. It appears that Mr. Negi concealed these facts from the court below in order to bring his complaint within time limit as has been prescribed under the Act.
7. Hence, for the reasons stated above, the impugned complaint and the order of cognizance dated 17.3.2006 are liable to be quashed.
8. Resultantly, the petition is allowed. The impugned order of cognizance dated 17.3.2006 as well as the entire proceedings of Criminal Complaint Case No. 43/2006, Soorvir Singh v. Rajendra Singh, pending before the Special Judicial Magistrate, Tehri Garhwal, u/s 138 of the Act, are hereby dismissed. Inform the court concerned accordingly.
