Rakesh Virmani 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 Cr.P.C.), the petitioner/applicant has sought quashing of the proceedings of Complaint Case No. 297 of 2005, Kailash Prasad Garg v. Rakesh Virmani, u/s 138 of The Negotiable Instruments Act, 1881 (for short, the Act).

Heard learned Counsel for the parties and perused the entire material available on file.

In brief, the facts of the case are that Kailash Prasad Garg filed a complaint in the court of Judicial Magistrate, Pauri Garhwal against the applicant stating therein that the complaint and the applicant were known to each other from very long time and, on the basis of this, the applicant asked for Rs. 1,50,000/- from the complainant on credit. In May 2005, the complainant gave the same amount to the applicant with the assurance of the applicant that the money will be returned soon. It is further stated that when the complainant asked for his money, the applicant issued a cheque bearing No. 671215 dated 30.7.2005 of Rs. 1,50,000/-payable at P.N.B., Branch Rishikesh in favour of the complainant. It is alleged that when the said cheque was presented in the bank by the complainant, the same was dishonoured and was returned to him by the bank on 20.9.2005 with the endorsement "Funds Insufficient". Thereafter, the complainant sent a notice through his counsel to the applicant on 4.10.2005, which was served upon the applicant. But even after service of notice, the applicant did not pay the money to the complainant. With the same averments, the respondent No. 2 filed the complaint against the applicant, which was registered as Criminal Case No. 297 of 2005. The complainant in support of his case got himself examined u/s 200 Cr.P.C. and in documentary evidence, he filed the cheque in original and the memorandum of bank. After hearing learned Counsel for the complainant and perusing the entire material available, learned Judicial Magistrate, Ist Class, Pauri Garhwal vide his order dated 3.12.2005 summoned the applicant u/s 138 of the Act. Feeling aggrieved by the said order dated 3.12.2005, the applicant has preferred the present Code 482 application before this Court.

A counter affidavit has been filed on behalf of the complainant in which the averments made in the Code 482 application have been denied.

From a perusal of the contents of the complaint as well as the statement of the complainant Kailash Prasad Garg recorded u/s 200 Cr.P.C. and after going through other papers available in file, I am of the view that prima facie a case u/s 138 of 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 Cr.P.C., 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 and the statement recorded u/s 200 Cr.P.C. are taken at their face value and accepted in their entirety as well as on the basis of the documentary evidence, I am of the view that the applicant has rightly been summoned by the trial court and the criminal proceedings are accordingly rightly initiated against him. 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 Code 482 application, being devoid of merit, is dismissed accordingly. Interim order dated 14.7.2006 stands vacated.