- (1.) M. K. Mittal, J. The application has been filed under Section 482 Cr. P. C. to quash the Complaint No. 106/98, Luxmi Traders v. Jai Shakti Plastic and Ors. , under Section 138 Negotiable Instruments Act (hereinafter referred as Act) and 420 I. P. C. pending in the Court of Xth Additional Chief Judicial Magistrate, Agra.
(2.) HEARD learned Counsel for the parties and perused the record. The counter and rejoinder affidavits have also been filed. The brief facts of the case are that the opposite party No. 2 filed a Criminal Complaint under Section 138 of the Act, alleging that the complainant does the business of plastic granules. The accused Ashok Kumar Agrawal and Sanjay Agrawal are partners of M/s. Jai Shakti Plastic and they used to manufacture and supply plastic pipes etc. The accused gave a cheque No. 434259 dated 15th April, 1998 for Rs. 50,000/- towards payment of the goods. The cheque was payable at Canara Bank, Agra, and the accused had assured that if presented at Bank, it would be cashed. The complainant presented the cheque at the bank but it was returned unpaid on 22nd April, 1998. The accused gave the cheque with intention to cheat the complainant. Earlier also the accused had given a cheque but had stopped its payment and thereafter had given this cheque. When the cheque was issued the amount in the account of the accused was insufficient and therefore, the accused have committed the offence punishable under the Act. The complainant also gave a registered notice dated 4th May, 1998 through Counsel and demanded the accused to make the payment within 15 days but it was not done and then he filed the complaint on 4th June, 1998. The learned Magistrate examined the complainant under Section 200 Cr. P. C. and his witness Harish Chandra Sharma under Section 202 Cr. P. C. and finding that a prima facie case was made out, directed to summon the accused under Section 138 of the Act. Against that order the accused filed objection but the same was rejected by the learned Magistrate vide order dated 4th June, 2001. Against that order the accused filed Criminal Revision but the same was also dismissed by order dated 10th January, 2003 by the learned Additional Sessions Judge, Agra.
(3.) ACCORDING to the applicant Ashok Kumar Agrawal, the complaint is not legally maintainable and the learned Magistrate has erred in summoning the accused. ACCORDING to him the complainant was given post dated cheque. He had not purchased any goods and therefore, the accused had informed the bank to stop payment and had also informed the complainant not to present the cheque vide notice dated 5th February, 1998, but the complainant presented the post dated cheque and therefore, no offence under Section 138 of the Act is made out against the accused. The accused has also filed the copy of the notice dated 5th February, 1998 as Annexure-10. It has also been contended that it was a matter of business transaction and the dispute is of civil nature. ACCORDING to the accused applicant, the complainant has not specifically stated that the accused were incharge of the business of the firm. In the circumstances prayer has been made for quashing the complaint. The opposite party filed counter-affidavit and contended that there were business dealings between the parties even prior to this transaction and the accused are the partners of the firm. The accused gave the cheque dated 15th April, 1998 because the goods were supplied to the accused and his contention that no goods were purchased is not correct. According to the opposite party the accused has himself taken the case that the goods were sub-standard and it shows that the goods were supplied and the cheque was paid towards the value of the goods. The cheque was presented but was returned by the Bank. According to opposite party, the accused did not give any notice dated 5th February, 1998 and has fabricated this notice, for the purpose of this case. The opposite party has also contended that the applicant had filed objection against the summoning order in the Trial Court and there he did not mention about the giving of any notice on 5th February, 1998 asking the complainant not to present the cheque. Had he given any such notice, this fact must have been mentioned in the objection taken by the applicant at the earliest stage and it shows that this notice has been fabricated for the purposes of this case. The opposite party has also taken the case that the cheque was bounced and that it was not a post dated cheque and that in any case the applicant accused has committed the offence punishable under Section 138 of the Act and the dispute is not of a civil nature and there is no legal ground for quashing the complaint and the petition under Section 482 Cr. P. C. is liable to be dismissed with special costs.;