Decided on September 11,2012

Deewan Kataria Appellant
Dinesh Chandra Agarwal Respondents


- (1.) Having heard learned Counsel for the parties, it transpires that some transaction regarding purchase of a land took place between applicant Deewan Kataria and respondent Dinesh Chandra Agarwal. The said land was situated in Ramnagar and it was to be purchased by Dinesh Chandra Agarwal. Out of the total sale consideration, rupees fifteen lakhs were paid as advance money to Deewan Kataria. However, the deal could not be ultimately materialised. So, Mr. Kataria in order to return the advance monetary consideration received by him issued a cheque on 21.2.2011 in favour of Dinesh Chandra Agarwal. The said cheque was drawn at Allahabad Bank, Peerumdara, Ramnagar. It was presented by Dinesh Chandra Agarwal for encashment through his banker at Ramnagar itself. The said cheque was dishonoured and returned unpaid with the endorsement "insufficient fund". Information to this effect was communicated by the bank to Mr. Agarwal on 25.2.2011. Thereafter, on 17.3.2011, Mr. Agarwal issued demand notice to Mr. Kataria as envisaged under Section 138(b) of the Negotiable Instruments Act. It was duly replied by Mr. Kataria vide his reply dated 6.4.2011, whereby he refused to make payment citing that the cheque, in question, was actually lost by him.
(2.) When the payment was not made to Dinesh Chandra Agarwal, he filed a Criminal Complaint Case No. 815/2011 on 2.5.2011 before the court of Additional Chief Judicial Magistrate, Kashipur. Learned Magistrate after recording the statements under Section 200 and 202 CrPC, summoned the accused applicant vide impugned order dated 2.5.2011.
(3.) The impugned complaint has not been assailed on the ground of limitation. It has been challenged on two grounds, firstly, lack of jurisdiction and, secondly, that the cheque, in question, was missing and it was never, in fact, issued in favour of the complainant.;

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