S.P. Pathak, J. - (1.) By this petition under section 482 Cr.P.C., the petitioner has challenged the order 30.06.2010 passed by the learned Additional Chief Judicial Magistrate No.9, Jaipur city, Jaipur in complaint case no.970/2008 whereby the application filed by the petitioner has been rejected.
(2.) Briefly stated, the facts for the disposal of the present petition are that the petitioner is facing trial in a case where a complaint under section 138 of the Negotiable Instruments Act, 1881 (here-in-after to be referred as, 'the Act') was filed against him as a cheque of Rs. 1,00,000/- issued in favour of the complainant was dis-honoured on account of instruction given by the petitioner to the bank to stop payment. The evidence in this case has been recorded. Prior to filing the complaint, a notice was sent to which reply was filed. The case is now at final stage for hearing. In the case, an application was moved along with a demand draft of Rs. 1,00,000/- with the prayer to dismiss the complaint. The respondent declined to accept the demand draft and insisted the court to decide the matter. The present petition under section 482 Cr.P.C. has been filed against the order dated 30.06.2010 by which the application filed by the petitioner has been dismissed and the matter has been kept for final hearing on 17.7.2010.
(3.) It has been contended by the learned counsel for the petitioner that since the demand draft along with application was presented before the court, the case was liable to be dismissed and, therefore, the court has committed illegality in dismissing the application and not dismissing the case. It has also been contended that during the course of cross-examination, the complainant himself had agreed that he was prepared to receive the bank draft and when the demand draft was filed along with the application, the respondent declined to accept the same, therefore, the court below has committed illegality in fixing the case for final hearing instead of dismissing the complaint and handing over the demand draft submitted along with the application to the complainant. In support of his submissions, learned counsel has placed reliance on Mrs. Usha Badri Poonawalla v. Kurien Babu & another, 2006 Cr.L.J. 618 and Damodar S. Prabhu v. Sayed Babalal H., 2010(3) Supreme 547 .;