Rajesh Chauhan vs Kulwant Singh

Ravindra Maithani, J

Instant petition has been filed by the petitioner challenging a summoning order dated 30.08.2014 and the entire proceedings of Complaint Case No.

1509 of 2014, Kulwant Singh Vs. Rajesh Chauhan, pending in the court of learned IInd Civil Judge (J.D.) Judicial Magistrate Haridwar (for short

“the caseâ€​). By the impugned order the petitioner has been summoned under Section 406 IPC.

Heard learned counsel for the parties through video conferencing.

Facts briefly stated are that the respondent filed a complaint under Sections 120-B, 403, 406 and 424 IPC before the court, which is the basis of the

case. According to the complaint, the respondent had taken Rs.50,000/- on 17.01.2011 from the petitioner. In lieu thereof, the petitioner had asked five

cheques and the signature of respondent on a stamp paper. Subsequently, the respondent repaid the amount, but the petitioner did not return all the

cheques and stamp number. One cheque no. 483625 and a stamp paper were not returned to the respondent and the petitioner told that he had

destroyed them. Subsequently, according to the complaint, it was revealed that the petitioner gave the cheque to some other person, who filed a

complaint against the respondent. This and with some other allegations, the complaint was filed. After enquiry, on 30.08.2014, petitioner has been

summoned under Section 406 IPC, it is impugned herein.

Learned counsel for the petitioner would argue that the entire case is false because the cheque in question was given by the respondent to a Smt.

Vijay Sharma, who had filed a Complaint No. 8760 of 2012, under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Actâ€)

against the respondent, in which, cognizance was taken on 18.12.2012, thereafter, the false complaint has been filed against the petitioner.

On the other hand, learned counsel for the respondent would submit that at the time of loan five cheques and a stamp was taken by the petitioner

from the respondent, but he did not return a cheque, which he subsequently handed over to a third person, who filed a complaint against the

respondent.

A copy of complaint of Complaint Case No. 8760 of 2012, Smt. Vijay Sharma Vs. Kulwant Singh under Section 138 of the Act in the court of

learned Chief Judicial Magistrate Haridwar (for short “the first caseâ€) has been filed alongwith summoning order in the second case. It reveals

that on 18.12.2012, based on the same cheque, respondent has been summoned under Section 138 of the Act.

With regard to cheques, there are certain presumptions under the Act. Section 139 of the Act enumerates that the presumption shall be in favour of

the holder. According to it, “It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature

referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.†The first case was filed by Smt. Vijay Sharma and

cognizance in the first case was taken long before the complaint was filed by the respondent in the case. The cognizance in the first case was taken

on 18.12.2012. The date, when complaint was filed by the respondent, he was aware that he has been summoned under Section 138 of the Act with

regard to the same cheque on which, his complaint is based.

This Court is of the view that since, cheque in question is involved in the first case, there has been no occasion to summon the petitioner for the

offences, as alleged in the complaint. In fact, no prima-facie, case is made out at this stage. Whatever respondent has to say, he would have raised

objections in the first case and he would have also placed his rival versions before the court, which was hearing the first case i.e complaint case of

Smt. Vijaya Sharma. Separate proceedings with regard to the same cheque cannot be permitted. Therefore, this Court is of the view that impugned

summoning order deserves to be set aside and the entire proceedings of the case deserve to be quashed.

The instant petition is allowed. The impugned summoning order is set aside and the entire proceedings of the case are hereby quashed.