Shri Kant Tripathi, J. - (1.) HEARD learned counsel for the applicant and the learned A.G.A. for the State and perused the record.
(2.) THIS is a petition under Section 482 Cr.P.C for quashing the proceedings of complaint case No. 58/IX/10, Atul Agarwal v. Sachin Agarwal pending in the Court of Judicial Magistrate-Vth, Mathura. It appears that the respondent No. 2 has filed the aforesaid complaint against the applicant under Section 138 Negotiable Instrument Act, 1881 (hereinafter referred to as 'Act') on the ground that the applicant issued Cheque No. 0674988 dated 5.6.2010 for Rs. 3,00,000/- in favour of respondent No. 2 which was payable at Punjab National Bank, Koshikala branch, Mathura. The respondent No. 2 tendered the cheque in the bank for encashment but the cheque was dishonored on the ground that there was no sufficient money in the account of the applicant. The respondent No. 2 on receiving such infromation from the bank, sent the legal notice dated 8.7.2010 to the applicant calling upon him to make the payment of the amount mentioned in the notice within fifteen days but the applicant failed to pay the amount despite service of legal notice. Consequently, the respondent No. 2 filed the aforesaid complaint under Section 138 of the Act. The learned Magistrate took cognizance of the offence and obtained affidavit of the respondent No. 2 under Section 200 Cr.P.C. and after considering the relevant materials passed the summoning order dated 8.12.2000 against the applicant.
(3.) LEARNED counsel for the applicant submitted that the learned Magistrate has not examined the complainant under Section 200 Cr.P.C nor made any inquiry under Section 202 Cr.P.C, therefore, the summoning order on the basis of the affidavit of the respondent No. 2 was bad in law. It was next submitted that the order-sheet maintained in the complaint case, nowhere discloses that any affidavit was filed on behalf of the applicant. Therefore, the reference of the affidavit in the summoning order has no relevance. It was next submitted that there was no liability of the applicant towards any debt or any other similar transactions, therefore, the offence under Section 138 of the Act was not made out. In this connection, learned counsel for the applicant placed reliance upon the case of Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 2 SCC (Cri) 166. Learned counsel for the applicant lastly submitted that the aforesaid cheque had been misplaced from the applicant and he had lodged a report on 14.4.2010, therefore, the respondent No. 2 misused the cheque and concocted the present case. It was also submitted that the facts disclosed in the complaint are altogether false and have no reasonable basis, therefore, proceeding of the complaint case are liable to be quashed.;