- (1.) M. K. Mittal, J. Application has been filed under Section 482 of Criminal Procedure Code (hereinafter referred as code) to quash the complaint case No. 6533 of 2004, Rajesh Arora v. Sant Kumar Khera, under Section 138 Negotiable Instruments Act (hereinafter referred as Act) pending in the Court of A. C. J. M. , Court No. 46 Agra.
(2.) HEARD Sri Ajay Rajendra, learned Counsel for the applicant, Sri M. N. Jain learned Counsel for the opposite party No. 2, learned A. G. A. and perused the record. Brief facts giving rise to the aforesaid proceedings are that opposite party No. 2 filed a complaint alleging that there was business relationship between him and accused and in that connection, he gave Rs. 4. 22 lacs to the accused on different occasions. The accused had assured him that he would return back the money and when he demanded his money, the accused gave the cheque for Rs. 4. 20 lacs of Rani Laxmi Bai Arban Co-operative Bank Limited, Jhansi, dated 4-8-2004 at his Agra residence and assured that the amount would be paid. He also assured him to pay the balance amount of Rs. 2,000 subsequently. The accused asked the complainant to wait for some time as full amount was not in his bank account but the accused did not inform him the exact date for payment and the complainant thinking that due date of the cheque would expire, presented the cheque at State Bank, main branch, Agra, on 10-11-2004. This cheque was returned by the bank on 30-11-2004. The accused knowing that money was not in his account gave a cheque and intentionally did not allow the payment to be made with mala fide intentions. The complainant gave the notice to the accused on 8-12-2004 but no payment was made and then he filed a complaint on 24-12-2004. According to the applicant he gave a cheque for Rs. 20,000 to his friend Sri S. S. Bajpayee on 30-9-2002 as security amount to the loan on which no date or name was mentioned and he repaid the amount to Sri Bajpayee but Sri Bajpayee informed that the cheque was missing but assured to return the cheque as soon as it was available. On 2-10-2004, Sri Bajpayee informed the applicant that the cheque was not traceable and therefore, the applicant got stop payment of the cheque on 5-10-2004. The applicant has further contended that under conspiracy and by fabricating the amount and increasing the same to Rs. 4. 22 lacs, the cheque was sent to his bank. In this connection, he also gave a reply notice dated 27-12- 2004 to the opposite party. The applicant has further contended that the opposite party allegedly gave a notice dated 8-12-2004 and has filed the complaint on 24-12-2004 violating the provisions of Section 142 (b) read with Section 138 (c) of the Act and the complaint is therefore, not maintainable and is liable to be quashed. In reply the opposite party has filed counter-affidavit and has contended that no fabrication has been made in the amount or date of the cheque and that the learned Magistrate has rightly taken the cognizance and passed the summoning order and that complaint is not liable to be quashed.
(3.) THE main contention of the learned Counsel for the applicant is that the complainant has not followed the provisions of Sections 138 (c) and 142 (b) of the Act and therefore, the complaint is liable to be quashed. It will be useful to refer to Section 138 (c) of the Act, the relevant portion of which reads as under: "the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. " The cognizance of the case is to be taken by the Magistrate as provided under Section 142 of the Act. This section reads as under: "cognizance of the offence.-Notwithstanding anything contained in the Cr. P. C. , 1973 (2 of 1974): (a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138: (Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court, that he had sufficient cause for not making a complaint within such period); (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138. ";