- (1.) Present petition has been filed by the petitioner Manoj Sahi with the prayer to quash the summoning order dated 01.09.2009 passed by Additional Chief Judicial Magistrate Third, Varanasi in complaint case No. 1635 of 2009 (H.P.S. International Pvt. Ltd. v. Manoj Sahi), Police Station Sigra, District Varanasi, by which the petitioner has been summoned to face trial for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act").
(2.) Heard learned counsel for the petitioner as well as learned AGA for the State and learned counsel for the opposite party No. 2 and perused the record.
(3.) The factual matrix of the present case is that the opposite party No. 2, H.P.S. International Pvt. Ltd. through its Director Vivek Beri through power of attorney Ram Keshav Dubey filed a complaint against the petitioner before the Magistrate concerned with the prayer to punish the petitioner for the offence under Section 138 of the Act. The allegations as made in the said complaint are that the complainant is a private company and is doing the work of publication of books and supply of the same to book sellers for sale on borrow or payment in cash as per their demand. The accused/ petitioner is a book seller and on his demand certain books were supplied to him and for making payment of said books, the accused provided two post dated cheques dated 07.05.2008 for Rs. 1,00,000/-and Rs. 9,16,000/- to be paid from two different accounts of UCO Bank, Branch Brajraj Nagar. It is further alleged in the complaint that the complainant before producing the said cheques before the concerned Bank has sent a registered letter on 08.08.2008 to the accused to the effect that the cheques shall be presented after 25.08.2008 for encashment and thereafter on 05.09.2008 the said cheques were presented in his accounts in Syndicate Bank, Main Branch, Varanasi for payment, but the said two cheques were dishonoured on 18.09.2008 by the concerned Bank with the endorsement that the accounts were closed and signature of the drawer differs. After receiving the information on 24.10.2008 about dishonour of cheques, the complainant company through its lawyer sent a registered AD letter on 01.11.2008 to the accused informing about the dishonour of cheques by the concerned Bank and demanding payment under aforesaid cheques, but the said notice was returned to the sender due to absence of accused since long time. Thereafter, on 20.11.2008 again a registered notice was sent by the complainant company through its lawyer to the accused, but the same was refused to accept by him on 02.12.2008, which shows that the accused was intentionally not receiving the said information, whereas he has sufficient information about dishonour of the cheques. It is further alleged that the accused in spite of having sufficient information about notice and receiving information about dishonour of the cheques, did not pay the amount in question to the complainant within time and, as such, has committed offence under Section 138 of the Act, hence the complaint was filed within time on 13.01.2009.;