NAHE E D ARA MOONIS,J. - (1.) HEARD the learned counsel for the applicant, learned A.G.A. and perused the record.
(2.) THE instant petition has been filed for quashing the entire proceedings of complaint Case No. 647 of 2010? under Section 138 Negotiable Instruments Act, police station George Town, district Allahabad pending in the court of the Additional Chief Judicial Magistrate, Court No.10, Allahabad. The opposite party no.2 had filed a complaint under Section 138 Negotiable Instruments Act against the applicant for the dishonour of cheque issued by the applicant for Rs. 2,50,000/- dated 10.12.2009. When the said cheque was presented by the complainant for encashment within the stipulated period it was dishonoured with the endorsement of 'insufficient funds' in the applicant's account. A legal notice was given to the applicant on 10.3.2010 thereafter neither any reply was given nor money was returned by the applicant. Hence, the opposite party no. 2 had to file a complaint against the applicant under Section 138 Negotiable Instruments Act on 29.3.2010. In support of the complaint the complainant filed his own affidavit, copy of cheque and receipt of bank were filed before the court below and on the basis of which the learned Magistrate prima facie found that an offence is made out under Section 138 Negotiable Instruments Act and passed the summoning order against the applicant by order dated 9.9.2011. It is contended by the learned counsel for the applicant that no notice of summon was ever received by the applicant and the proceedings have been initiated under Section 138 Negotiable Instruments Act. The amount due against the applicant was already given to the opposite party no. 2 in respect of the sale deed, therefore, the cognizance taken by the court below is nothing but an abuse of the process of the court.
(3.) PER contra the learned A.G.A. has contended that the disputed question of facts will be considered by the court below during trial after leading evidence by the parties, therefore, the present proceedings initiated against the applicant cannot be said to be illegal. The prayer for quashing the proceeding is liable to be refused.?;