Decided on December 03,2013

Savita Popli Appellant
Mahindra And Mahindra Financial Services Limited Respondents


U.C.DHYANI, J. - (1.) BY way of present application / petition, moved under Section 482 of Cr.P.C., the applicant seeks to quash the summoning order dated 16.12.2009, as well as the entire proceedings of criminal case no. 2105 of 2009, under Section 138 of the Negotiable Instruments Act, pending in the court of Judicial Magistrate, Haldwani, District Nainital.
(2.) A criminal complaint case was filed by the complainant (respondent herein) against the accused (applicant herein) under Section 138 of the Negotiable Instruments Act, 1881 in the Court of Judicial Magistrate, Haldwani. After recording the statement of the complainant in the form of affidavit under Section 200 of Cr.P.C. and also on the basis of documentary evidence filed under Section 202 of Cr.P.C., the accused was summoned to face the trial under Section 138 of the Negotiable Instruments Act, vide order dated 16.12.2009. Aggrieved against the said order, present application under Section 482 of Cr.P.C. was filed by the accused (applicant herein). It was stated by the complainant in the complaint that the accused obtained a loan of Rs. 1,40,000/ - from the complainant on 01.09.2005. The loan amount was to be repaid by the borrower (applicant herein) to the complainant in 36 equal monthly installments. Since the accused never repaid the loan amount to the complainant in time, therefore, a sum of Rs. 1,12,852/ - was outstanding against her. When complainant contacted the accused, she gave a cheque of Rs. 1,12,852/ - to the agent of the complainant on 06.08.2009. When said cheque was presented for encashment in the bank, the same was returned with the endorsement "insufficiency of funds". Complainant gave oral information to the accused regarding dishonour of cheque, but she did not repay the same. Thereafter, the complainant gave a registered notice to the accused through her counsel Mr. Ganesh Singh Negi at her address, but the said notice was returned unserved. Inspite of the knowledge of notice, accused did not make payment of Rs. 1,12,852/ - to the complainant and, hence, the criminal complaint case under Section 138 of the Negotiable Instruments Act.
(3.) COMPLAINANT filed the affidavit of Amrendra Dubey, Legal Karya Palak, Mahindra and Mahindra Financial Services Ltd. Copy of the registered notice dated 19.09.2009 sent on behalf of the complainant to the accused was also enclosed. Original cheque, bank memo, copy of the notice, postal receipt and registered envelope were also filed by the complainant. Foundation of criminal offence under Section 138 of Negotiable Instruments Act is, therefore, laid against the accused applicant.;

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