- (1.) K. L. Sharma, J. This is a petition under Section 482, Cr. P. C. , for quashing the summoning order, the non-bailable warrants, proceedings under Sections 82 and 83, Cr. P. C. , drawn against the applicant and also for quash ing the proceedings in the Criminal Case No. 1489 of 1990, Mjs. Satish Sales Agency v. Raghu Mai Nagar Singh Pvt. Ltd. and others pending in the Court of Munsif Magistrate, Rishikesh.
(2.) I have heard Sri Vinod Mishra, learned counsel for the applicant and A. G. A. and perused the material brought on record. Sri S. N. Babulkar. Advocate, who filed his Wakalatnama on behalf of the respondent No. 1, is, however, not present and the learned counsel for the applicant states on information received from the clerk of Sri S. N. Babulkar that Sri Babulkar does not have further instructions from the res pondent No. 1 in this case. It has been submitted that the complain is not maintainable inasmuch as the offence of cheating is not made out for the reason that the bank draft has not been actually encashed and thefmoney is still lying in the account of the complainant and the matter being of civil nature cannot be adjudicated by the Magistrate.
(3.) IN the case of Kailash Choudhary, 1944 JIC 422: 1994 (3) Crlj 67, it has been held that the persons summoned by the Magistrate on ex parte consideration of the evidence in the complaint case must appear be; ,,re the learned Magistrate and file their objection instead of approaching this Court under Section 432, Cr. P. C. as the Magistrate is competent to recall his exports order and can even drop the proceedings. However, the coercive measures taken by the Magistrate without ensuring the service of the summons and default of the sumraoed persons and service, of bailable warrant and default thereof cannot be legally maintained and are liable to be quashed. Therefore, this petition is hereby finally dispose of with the directions that the applicant shall appear on or before 31st March, 1995 through his counsel before the Munsif Magistrate, Rishikesh, and file objec tion along with application for exemption from personal attendance and there upon the learned Magistrate shall grant exemption and hear and decide the objection without further proceedings in the matter and without taking any coercive measures against the applicant. The nonbailable warrant and he proceedings under Sections 82 and 83, Cr. P. C, drawn and issued against the applicant in the aforesaid case shall stayed, is hereby quashed. Petition disposed of. .;