- (1.) KUNDAN Singh, J. This revision has been preferred against the order dated 29-11-91 whereby the Munsif Magistrate V, Kanpur, has summoned the applicants under Sections 138 and 141 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code, in Case Crime No. 1477 of 1991, to stand their trial.
(2.) THE opposite party No. 2 filed a criminal complaint against the applicants. Applicant No. 5 is a firm known as M/s. S. K. Industries of which applicant Nos. 1 to 4 happen to be the partners. THE firm is situate in Sector I, Industrial Area, Parwanco, Himanchal Pradesh. In brief, the complaint allegations are that the applicants entered into a business deal with opposite party No. 2, M/s. Bharat Berg Ltd. Gwaltoli, Kanpur, which on demand by the applicants, supplied certain G. P. / G. C. Sheets but they committed default in payment of price of the goods supplied in spite of several reminders made in that regard. Ultimately, Sri N. K. Mantri, an employee of opposite party firm, was deputed by opposite party No. 2 to approach the applicants and settle the accounts, which were fettled with the applicants on 11-7-91. The applicant Rajesh Bhatia handed over a cheque of Rs, 8,98,178 to Sri N. K. Mantri the same day in of dues under the signature of applicant No 1 That cheque was presented in the Bank at Kanpur on 11-7-91 but it was dishonoured on 22-7-91 with the remark "arrangement exceeds", meaning thereby that the cheque issued was for the amount more than what was available in the account of the applicants. Thereafter notices were sent by this Secretary of the opposite party No. 2 to the applicants on 27-7-91 Applicant No. 1 received that notice "but the notices of other applicants were returned with the endorsement out of station. " The notices were then again sent to them but this time too the same were returned with the remark of the postal department "left without address". Thereupon the opposite party No. 2 filed a criminal complaint in the Court of Munsif Magistrate, Kanpur and in support of that complaint the complainant examined himself under Section 200, Cr. P. C. and Sri R. K. Maheshwari and Sri N. K. Mentri under Section 202, Cr. P. C. The learned Magistrate after perusing the contents of the complaint and the statements of the witnesses recorded under Sections 200 and 202 Cr. P. C. was satisfied that a prima facie case was made out against the accused-appellants and consequently he sumnoned them by the impugned order to stand trial.
(3.) THE learned counsel for the applicants assailed the summoning order on a number of grounds. His first and foremost contention was that a blank Cheque was deposited by the applicants with opposite party No. 2 as security towards the business deal on 26-7- Which has been acknowledge by Sri N. K. Mentri by issuing a receipt dated 26-7-9filed as Annexure 4 to the affidavit, and since the cheque was issued on 26-7-90 and not on 11-7-91, as alleged by the opposite party No. 2, the prosecution was barred by limitation as envisaged in Section 138 of the Negotiable Instruments Act, hance the learned Magistrate had no jurisdiction to take cognizance on the complaint. In my opinion, this contention of the learned counsel has no merit inasmuch as the allegations made in the complaint, supported by the statements record ed under Sections 300 and 202, Cr. P. C. do not show that the cheque was issued on 26-7-90 and not on 11-7-91, the date scribed on the cheque. ID what circumstances the applicants had obtained the receipt of back date and the fact whether it is an authentic document have to be explained and proved by the author of the receipt during the course of trial. All these are matters of evidence to be received by the Magistrate in the trial and on mere ante dated receipt without opportunity to the complainant, the complaint cannot be thrown or rejected at this stage.;