AMIT KUMAR Vs. OMKARDEEP SINGH
HIGH COURT OF UTTARAKHAND
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Alok Singh, J. -
(1.) PRESENT petition is filed assailing the order dated 28.09.2007, passed by learned Judicial Magistrate Rudrapur, District Udham Singh Nagar in Criminal Complaint No. 1170 of 2007, whereby learned Judicial Magistrate was pleased to summon the petitioner for the offence punishable under Sections 420, 506 IPC. As per the statement of the complainant, recorded under Section 200 of Code of Criminal Procedure, petitioner/accused issued one post dated cheque of Rs. 45,000/ - to the complainant for the payment of outstanding dues with dishonest intention to cheat the petitioner. It has further been stated in the statements, recorded under Section 200 of Code of Criminal Procedure that at the time of issuing the cheque, the endorsement was obtained from the complainant to the effect that after getting the cheque, nothing would remain due, against the petitioner.
(2.) MR . Mahavir Singh Tyagi, learned advocate appearing for the petitioner/accused, submits that from the perusal of the complaint as well as the statements recorded under Sections 200 and 202 of the Code of Criminal Procedure, it can safely be said that civil dispute has been given the colour of the criminal offence. He further contends that none should be permitted to invoke criminal jurisdiction to settle the score pertaining to the civil dispute, more particularly money dispute of recovery and rendition of account. Hon'ble Apex Court in the case of Mahesh Chaudhary v. State of Rajasthan reported in : 2009 (2) SCC (Cri.) 332 has held that in every case of forgery and fraud, there would always be element of civil nature; therefore, High Court should not lightly interfere in the criminal proceedings at the summoning stage.
(3.) HON 'ble Supreme Court in the case of Hridaya Ranjan Prasad Verma v. State of Bihar and another reported in : 2000(4) SCC 168 has held that on the reading of Section 415 of the Indian Penal Code, it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. Having perused the record, I am satisfied that prima facie complainant was successful in proving that cheque was issued by the petitioner to the complainant with dishonest intention to cheat the complainant knowing well that cheque would not be encashed; now onus is shifted on the accused to prove that at the time of issuing cheque there was sufficient amount in the bank account to honour the cheque as required under Section 106 of Evidence Act. In my further opinion such onus can be discharged during the trial but not at this initial stage. Therefore, in my considered opinion, no interference is called for in the summing order. Present petition, therefore, fails and is hereby dismissed.;
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