Decided on November 07,2007

First Learning Quest Private Ltd Appellant
Tera Construction Private Ltd Respondents


V.B.GUPTA,J. - (1.) PRESENT Criminal Revision petition under Section 397 Criminal Procedure Code has been filed seeking quashing of the Criminal complaint and order dated 25th July, 2006 passed by Shri. Ajay Pandey, Metropolitan Magistrate taking cognizance and for issuance of summons to the accused persons.
(2.) BRIEF facts of this case are that the respondent herein filed a complaint case under Section 138 of Negotiable Instruments Act (for short as 'Act') against the present petitioner on the ground that petitioner was a tenant under the respondent and the petitioner had issued a cheque for a sum of Rs. 8,18,473/- drawn in favour of the respondent and assured the respondent that the above cheque would be encashed on presentation as the petitioners had sufficient funds in their bank account. Believing the representations of the petitioners, the respondent accepted the cheque. The respondent presented the cheque through its bankers but the cheque was returned back with the remarks "Funds Insufficient". Thereafter, statutory notice under Section 138 of Negotiable Instruments Act was sent to the petitioners by registered A.D. as well as UPC and later on the complaint was filed before the court of Magistrate and vide impugned order, the Magistrate summoned the present petitioners. It has been contended by learned counsel for the petitioners that the Magistrate has erroneously passed order of taking cognizance of offence under Section 138 of the Act as the allegations made in the complaint did not disclose any prima-facie offence. The dishonoured cheque on which entire case has been pleaded up by the complainant is an inadmissible piece of evidence. Further, notice for demand required to be issued under Section 138 (b) of the Act has not been received by the petitioners and if issued at all, had been sent on wrong addresses and when statutory notice has not been received by the petitioners, no cause of action accrued to the respondent for launching the prosecution under Section 138 of the Act. The contents of the complaint also did not disclose any ingredients as required to complete the offence under Section 138 of the Act and there has been no mandatory provisions under Section 202(1) Criminal Procedure Code
(3.) FURTHER , in the entire complaint or in the affidavit filed by the complainant, not a single word has been averred to the effect that the cheque allegedly issued by the petitioner no. 2 was drawn for discharge of any legally enforceable debt or liability. In the absence of any such allegations, no offence under Section 138 of the Act is made out and the Magistrate has illegally assumed, that a prima-facie case under Section 138 of the Act is made out. Moreover, there has been overwriting in the order sheets of the trial court proceedings and as such the summoning order and the complaint are liable to be quashed.;

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