Suman Gagat vs State of Uttarakhand and Another

Dharam Veer, J.—Heard learned Counsel for the petitioner and perused the material on record.

By means of this application, the applicant has prayed to quash the proceedings of Complaint Case No. 2321 of 2003, Jitendra Virmani v. Suman Gagat, pending in the court of J.M. Ist, Dehradun u/s 138 of the Negotiable Instruments Act, 1881 (in short the Act).

As per the complaint, the petitioner gave a Cheque No. 856564 dated 17.8.03 for Rs. 2.00 lacs of State Bank of India, Tel Bhawan Branch, Dehradun to the complainant/respondent No. 2 in lieu of repayment of loan taken by her from the complainant. When the said cheque was presented in the bank, it has been returned dishonored on 01.09.2003 with the endorsement by the bank "insufficient funds". On 17.9.2003, the notice was sent by the complainant through his advocate, which was sufficiently served upon the petitioner. Even then the payment of cheque was not made to the compliant. Hence the complaint was filed on 21.10.2003. The complainant/respondent in support of his case filed his own affidavit while in the documentary evidence, he brought on record the original cheque, copy of notice, bank memo and the copy of postal receipt etc., before the trial court in support of his case. Considering the entire facts and circumstances of the case, the court below proceeded to summon the petitioner u/s 138 of the Act vide order dated 03.03.2004. Hence, this petition.

Learned Counsel for the petitioner submitted that the court below erred in summoning the petitioner. I do not find any force in this argument. In the present case, the cheque was issued on 17.8.2003 and it was deposited in the bank for payment and on 1.9.2003 it was dishonored with the endorsement having "insufficient funds".Thereafter, the notice was issued by the respondent through his advocate to the petitioner on 17.9.2003, which was also duly served upon the petitioner. However, even then the payment was not made to the respondent and ultimately on 21.10.2003, the complaint was filed by the complainant in the court. As such, the requirement of Section 138 has been made without their being any inordinate delay. Therefore, the offence punishable u/s 138 of the Act prima facie made out against the petitioner at this stage.

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., the High 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 as well as the documentary evidence brought on record by the complainant, are taken at their face value and accepted in their entirety, I am of the view that the petitioner 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, the application C482 is devoid of merit and is hereby dismissed in limine.