- (1.) Heard Mr. H.M. Singh, Learned Counsel for the Appellant and Mr. Shyam Divan, learned senior counsel for Respondent Nos. 1 and 2. The Appellant is aggrieved by the order of the High Court dated 17.8.2007 passed in Criminal M.C. No. 137/2004 in and by which the High Court quashed the complaint filed by the Appellant under Section 138 of the Negotiable Instruments Act as against the Respondents.
(2.) To trace the brief facts, the Appellant claimed that it entered into an agreement of sale on 4.3.2003 with M/s. A.D. Exports Private Limited for the sale of an undescribed property at Hansi, District Hisar in the State of Haryana for Rs. 74,86,000/- against which the said M/s. A.D. Exports Private Limited agreed to pay earnest money of Rs. 44,86,000/- and gave a pay order drawn on first Respondent Bank. The pay order was presented on 5.3.2003 and it was returned on 12.3.2003 with the endorsement "refer to drawer, account attached". The complaint under Section 138 of the Negotiable Instruments Act came to be filed on 6.5.2003. Summons were issued on the Respondents on 7.5.2003. Application for recalling the summons was filed by the Respondents on 9.6.2003, in which the learned Trial Magistrate passed orders on 1.11.2003 dropping the proceedings as against Respondent No. 1 and retaining the same as against Respondent No. 2. However, the Respondents filed petition under Section 482 Code of Criminal Procedure. in the High Court for quashing of the whole of the complaint on the ground that Section 138 of the Negotiable Instruments Act itself was not applicable to the case on hand. By the impugned order the learned Judge accepted the stand of the Respondents to quash the complaint in its entirety. That is how the Appellant is aggrieved and has come forward with this appeal.
(3.) Mr. Singh, Learned Counsel for the Appellant, in his submission contended that the pay order issued by the bank is nonetheless a cheque satisfying the definition of 'cheque' under Section 6 of the Negotiable Instruments Act and, therefore, complaint under Section 138 of the Negotiable Instruments Act was maintainable before the Trial Court. Learned Counsel relied upon a decision of this Court in Punjab and Sind Bank v. Vinkar Sahakari Bank Limited and Ors., 2001 4 RCR(Cri) 245, in support of his submissions.;