- (1.) IKRAM-ul-Bari, J. M/s. Chanda Electricals have applied under Section 482, Cr. P. C. for the quashing of the com plaint dated 23- 9-1996 (Annexure-5 to the petition), the order of summoning dated 21-8-1997 (Annexure-6 to the petition) and the order dated 9-9-1998 (Annexure-8 to the petition ).
(2.) THE complaint was made by the opposite party No. 2 on 23-9-1996 before the Chief Judicial Magistrate, Lucknow alleging an offence punishable under Section 13 of the Negotiable Instrument Act of 1881, on which Criminal Case No. 1250 of 1997 (Mis. Pepsico India Holdings Private Ltd. v. Chanda Electricals) was registered. THE learned Magistrate passed an order on 21-8-1997 summoning the ap plicants for trial for the offences punish able under Section 420, I. P. C. and Section 138 of the Negotiable Instruments Act. THE applicants moved an application dated 20-12-1997 before the learned Magistrate for cancellation of the order of summoning firm and for his discharge and also for dismissal of the complaint. The learned Magistrate heard the parties and passed an order dated 9-9-1998 rejecting the application dated 20-12-1997 for recall etc. The applicants have stated in peti tion under Section 482, Cr. P. C. as they had stated before the Magistrate, that the op posite party No. 2 had approached them for supply of a Sony Camera of the desired model on 19-6-1996 and a quotation for Sony Camera Model No. TR-385 EU for Rs. 41,500/- was given to it that on 27-6-1996 Mr. Atul Khosla on behalf of op posite party No. 2 had given a bank draft for Rs. 40,200/- as advance towards the price of the said Camera, that on 1 -7-1996 the applicant, informed Mr. Khosla that the Camera of the desired model was not available, that a Cheque No. 620098 dated 2-7-1996 was drawn on the Dena Bank, Hazratganj, Lucknow for Rs. 40,200/- and it was given to Mr. Khosla that despite that Mr. Khosla insisted that since sanction had been obtained for procuring Camera through the applicants the effort to find the desired Camera be continued; that on 4-7-1996 Mr. Khosla informed the ap plicants that the Camera of the desired model was available at Sahu Agencies, Hazratganj, Lucknow and insisted that the same be purchased with the money already advanced, with a promise to return the cheque to the applicant; that on 4-7-1996 the applicant purchased the Camera from the Sahu Agencies in the name of Mr. Atul Khosla and made the payment by bank draft No. 4060781 for Rs. 39,500/-'of the same date; that Mr. Atul Khosla was im mediately informed of the purchase and was requested to take the delivery-; that on 5-7-1996 Mr. Atul Khosla took the delivery of the said Camera, but in the evening of that day left that Camera at the shop of the applicant with an incorrect allegation that the said Camera was defec tive; that the applicant tried to explain to Mr. Khosla that the Camera had been pur chased on his insistence in his name and its price had been paid and it was no more possible to return the Camera to the Sahu Agencies and get back the money from them; that the applicant also requested Mr. Khosla to return the cheque dated 2-7-1996; that Mr. Khosla refused to return the said cheques; that the applicant informed Mr. Khosla on telephone and by letter dated 17-7-1996 sent under certifi cate of posting that he is issuing directions to the bankers to stop the payment of the cheque; that the bank was directed accord ingly; that even then Mr. Khosla presented the said cheque for encashment, but the bank returned it to him on 25-7-1996 with the endorsement that the payment had been stopped by the drawer; that there after a notice on behalf of opposite party No. 2 was received by the applicants on 7-8-1996 asking him to pay the face value of the cheque; that the said notice was replied suitably on 28-8-1996 explaining that the liability in respect of the cheque already stood discharged on purchases of the Camera, the delivery of which was ini tially taken by Mr. Khosla on 5-7-1996 after satisfaction and no case under Sec tion 138 of the Negotiable Instruments Act was made out.
(3.) THE learned Chief Judicial Magistrate considered the respective pleas of the applicant and the opposite party-No. 2 and, observing that the contention of the applicants can be examined during the trial, dismissed the application for recall of the summoning order etc. Opposite party No. 2 has not filed any reply to the petition. During the course of the arguments, the opposite party relied upon the case of Mis. Modi Cement Limited v. Shri Kuchil Kumar Nandi, 1998 JIC 418 (SC ). In that case it has been held that even if the cheque is dishonoured because of the stop payment direction, the case falls under Section 138 of the Negotiable Instruments Act.;