- (1.) This application under Section 482 Criminal Procedure Code is at the instance of the Smt. Radha Arora who is facing prosecution on the complaint of one Suresh Arora under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Negotiable Instruments Act) and Section 420 Indian Penal Code The complaint was filed on 1.7.1994 and was registered as Case Crime No. 170 of 1994 before 3rd Additional Judicial Magistrate, Mathura. It was stated in the complaint by Suresh Chand Arora that for repayment of loan advanced by him to the company of the accused as also for payment of his share after dissolution of the partnership business between him and his brother. Radha Arora (wife of the brother of the complainant and a director of the company which took the loan) had issued two cheques in his favour both on 2.5.1995 for an amount of Rs. 7 lakhs and odds and Rs. 25 lacs respectively. The cheques were drawn on the Oriental Bank of India. The complainant presented the cheques in the Bank at Mathura wherefrom he was informed that payment on the cheques had been stopped by the drawer of the cheques. The complainant further alleged that the accused had insufficient fund in the concerned account and the cheques could not have been encashed otherwise also. He sent a notice requiring the payment to be made to him. Even then the payment was not made and, accordingly the compliant in question was filed. In the complaint the offence alleged was shown as one under Section 138 of the Negotiable Instruments Act. The Magistrate took cognizance of the offence and directed issuance of summons to Radha Arora for offence under Section 138 Negotiable Instruments Act and under Section 420 Indian Penal Code The accused made an application before the Court below for cancellation of the summons but the same was rejected. Only thereafter, the present application has been filed. In her application before the Court below praying for cancellation of the summoning order the present applicant had stated that the parties were close relations. There was no dissolution of the partnership-firm and, accordingly there was no reason for payment of his share to the complainant. It was stated further that cheques were drawn at Oriental Bank at Bombay and accordingly the Mathura Court had no jurisdiction. It was contended that no case was made out.
(2.) As already indicated this plea was rejected by the Magistrate. In her application under Section 482 Criminal Procedure Code the applicant stated that she lost her cheque book with four signed blank pages and she had directed her banker Oriental Bank of India to stop payment of those cheques as far back as on 30.4.1992. It was further contended that the last transaction in this account was made long prior to 30.4.1992 and only an insignificant amount of Rs. 1000/- or so was left as balance in that account and it was improbable that any cheque of such huge amount would be issued against this account. It was also the contention of the learned Counsel for the applicant that even if the complainant's case was true his share in the partnership business would not have amounted to more than Rs. 4 lakhs and the loan could not have exceeded Rs. 8 lakhs and by no stretch of imagination the complainant could have claimed more than Rs. 12 lakhs. Accordingly the issuance of cheque to the tune of Rs., 32 lakhs and odd was prima facie an unacceptable claim.
(3.) The questions that arose for consideration in this case are : (1) what is the scope of Section 482 Criminal Procedure Code ? Could the Court in exercise of this power travel beyond the allegations in the complaint and consider the truth or otherwise of the defence case at this stage ? and (2) Whether the complaint prima facie makes out a case at all ?;