Piyush Agarwal vs State of Uttarakhand and Another

Dharam Veer, J.—By means of this petition, moved u/s 482 of The Code of Criminal Procedure, 1973 (for short Code of Criminal Procedure), the petitioner/applicant has sought quashing of the summoning order dated 31.8.2005 passed by Judicial Magistrate, Kashipur.

Heard learned Counsel for the parties and perused the affidavit and counter affidavit.

Brief facts of the case are that Jindal Fincap Ltd. through its Director Sri Vikas Jindal filed a complaint before Judicial Magistrate, Kashipur against the applicant with the allegations that the complainant''s company gives loan under the rules and regulations of Reserve Bank of India. It is alleged that on 26.12.1997 the complainant''s company had given a loan of Rs. 1.50 lacs to the applicant on certain terms and conditions and the same were also accepted by the applicant. It is further stated that on 30.6.2005 Rs. 4,49,777/- with interest was due on the applicant for which the applicant issued a cheque No. 104971 dated 2.7.2005 amounting to Rs. 4,49,777/- in favour of the company. It is alleged that when the cheque was presented in the bank it was returned to the company on 19.7.2005 with the endorsement "Account Closed". Thereafter, the complainant/company sent a legal notice through its counsel to the applicant on 21.7.2005, which was also served upon him. But even after service of the notice, the applicant did not refund the money of the complainant. With these averments, complainant/respondent No. 2 filed the present complaint in the court of Judicial Magistrate, Kashipur, against the applicant, which was registered as Criminal Case No. 1551/2005 u/s 138 of N.I. Act. The complainant in support of its case got himself u/s 200 Code of Criminal Procedure and also filed certain papers. After hearing learned Counsel for the complainant and perusing the entire material available, learned Judicial Magistrate, Kashipur, vide order dated 31.8.2005, summoned the applicant. Feeling aggrieved by the said order dated 31.8.2005, the applicant has preferred the present C482 application before this Court.

From a perusal of the contents of the complaint as well as on perusal of the statement recorded u/s 200 Code of Criminal Procedure and after going through other papers available in file, I am of the view that prima facie a case u/s 138 N.I. Act is made out against the applicant.

Even otherwise, the trial court will decide the case after recording the evidence of the complainant as well as of the accused and also on the basis of the appreciation of the evidence as per law. It is well settled that while exercising jurisdiction u/s 482 of the Code of Criminal Procedure, this Court would not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial court. If the allegations made in the complaint are taken at their face value and accepted in their entirety, I am of the view that the applicant has rightly been summoned by the trial court. The trial court will decide the case after recording the evidence adduced before it. I am of the view that in the present case there is neither any miscarriage of justice nor any abuse of process of court.

For the reasons recorded above, there is no force in the application. The C482 application, being devoid of merit, is dismissed accordingly. Interim order dated 16.12.2005 stands vacated.