Sunil Kumar Garg, J. - - (1.) This revision petition has been filed by the accused petitioner with the prayer that the order dated 4.11.2003 passed by the learned Addl. Chief Judicial Magistrate No.2 Udaipur in criminal case No.783/2002, by which the application dated 19.4.2003 filed by the accused petitioner for quashing of the complaint filed by the respondent-complainant under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act of 1881") was rejected, be quashed and set aside.
(2.) It arises in the following circumstances:- The complainant respondent filed a complaint under section 138 of the Act of 1881 against the accused petitioner before the Court of Addl. Chief Judicial Magistrate No.2, Udaipur and upon this, a criminal case No.783/02 was registered against the accused petitioner and he was summoned and he appeared before the Court of ACJM No.2 Udaipur. It may be stated here that the accused petitioner in consideration of the goods received from the complainant-respondent issued a cheque in favour of the complainant-respondent, but since there was some dispute between the accused petitioner and complainant-respondent, therefore, the petitioner himself ordered to stop the payment of the cheque in question, which resulted in filing of the said complaint under section 138 of the Act of 1881 bore the Court of ACJM No.2 Udaipur. During the pendency of the said case, an application was filed by the accused petitioner on 19.4.2003 before the Curt of ACJM No.2, Udaipur stating inter-alia that since the complainant respondent had himself not fulfilled the conditions of the transaction, therefore, for that reason, he ordered to stop the payment of the cheque in question and therefore, the matter was of civil nature and thus, the complaint filed by the complainant respondent under section 138 of the Act of 1881 was not maintainable and it should be quashed. The said application of the accused petitioner dated 19.4.2003 was rejected by the learned Addl. Chief Judicial Magistrate No.2, Udaipur through order dated 4.11.2003 holding inter-alia: (i) That it was a summons case and contents of the offence have already been read over to the accused petitioner and the case was running for recording of evidence of the complainant respondent and, thereafter, the present application dated 19.4.2003 was filed by the accused petitioner. (ii) That the accused petitioner alleged that complainant respondent had not fulfilled the conditions of the transaction and therefore, burden of proving that fact was on the accused petitioner for which he will have an opportunity, but that point could not be decided at this stage. (iii) That the present application was filed by the accused petitioner only with a view to delay the proceedings. Aggrieved from the said order dated 4.11.2003 passed by the learned ACJM No.2, Udaipur, the accused petitioner has preferred this revision petition.
(3.) In this petition, the main contention of the learned counsel for the accused petitioner is that since the complainant respondent has himself not fulfilled the conditions of the transaction, therefore, the complaint filed by the respondent complainant under section 138 of the Act of 1881 was not maintainable and it should have been rejected. Hence, the impugned order is illegal and without jurisdiction and the same is liable to be quashed and set aside.;