Decided on March 14,2013

Lajwanti Sharma Appellant
State of Uttarakhand and another Respondents


- (1.) The challenge herein is to the proceedings arisen out of criminal complaint case no.352 of 2006, Manoj Kumar Vs. Lajwanti Sharma, pending before the court of Judicial Magistrate (First Class) Kotdwar, District Pauri Garhwal, as also the order of cognizance dated 6.3.2007 asking the petitioner to stand trial for the offence of Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as the Act).
(2.) The thumbnail sketch behind the prosecution is the admitted borrowing of Rs.1.00 lakh by the petitioner R/o Dehradun city from respondent no.2 R/o Kotdwar, Pauri Garhwal way back on 26.3.2005. Per contra, the version of respondent no.2 is that the amount in fact was Rs.2.00 lakh (instead of Rs.1.00 lakh), which he lent to petitioner, a septuagenarian lady on the basis of acquaintance with her husband on the promise that the same shall be returned with interest in the month of March, 2005 itself. When the money was not repaid within the stipulated time, then respondent no.2 raised the demand. Petitioner made payment of Rs.60,000/- to respondent no.2 @Rs.5,000/- per month, and she also assured for the repayment of rest of money. However, when promise was not honoured, she was further pressed for repayment on which she came to Kotdwar on 7.8.2006 and issued a cheque of Punjab & Sind Bank, Kaulagarh, Dehradun worth Rs.1.00 lakh with the further assurance to make the payment of Rs.40,000/- at a later stage.
(3.) The said cheque was presented by respondent no.2 in Bank of India, Kotdwar for collection but it was dishonoured, so he issued a notice on 9.9.2006 to the petitioner, as envisaged under the Act but all went in vain. So, this complaint was filed on 7.10.2006 allegedly for the offence of Section 138 of the Act r/w Sections 420.426 IPC. Learned counsel has submitted that in fact only Rs.1.00 lakh was borrowed by the petitioner on account of her pressing circumstances and at the relevant time i.e. on 14.3.2005, to assure the repayment, she also mortgaged her residential house located at Tilak Road, Dehradun on the mortgaged papers and the agreement was also drafted which is Annexure No.1 to the petition. In order to make the payment doubly sure, six blank cheques bearing nos.778513 to 778518 were issued by the petitioner to respondent no.2 which she drawn from her banker. After borrowing the money, as stated above, she started making repayment to respondent no.2 and up to 12.3.2007, total money repaid was Rs.1.10 lakh. To manifest the same, the receipts of payment issued by respondent no.2 have been annexed as Annexure no.2 to the petition. This way, one thing is amply clear that within two years, petitioner had paid a sum of Rs.1.10 lakh to respondent no.2.;

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