M.N. Bhandari, J. - (1.) BY this petition, a challenge is made to the order dated 30.05.2007, whereby cognizance of offence was taken against the petitioner under Section 138 of Negotiable Instruments Act, 1881 (in short "the Act").
(2.) LEARNED counsel submits that cheques were issued with the understanding that the property of M/s. Hari Agro Industries would be transferred to the petitioner. The MOU was executed on 01.02.2006 followed by cheque. When the property of M/s. Hari Agro Industries was not transferred, the petitioner did not put sufficient amount in the Bank for encashment of cheque. The non -petitioner -complainant malafidely sent the cheque for encashment. When it was dishonoured, notice was given to the petitioner. He had filed detailed reply to the notice, however, ignoring the aforesaid, cognizance of offence was taken against the petitioner. The liability on the petitioner was to come, if property of M/s. Hari Agro Industries would have been transferred and not otherwise. In view of the above and in absence of transfer of the property of M/s. Hari Agro Industries, complaint under Section 138 of the Act is not maintainable. A reference of judgment of Hon'ble Apex Court in the case of State of Haryana & Ors. v. Bhajan Lal & Ors., reported in : 1992 Supp (1) SCC 335 has been given. Per contra, learned counsel for complainant submits that at the stage of cognizance of offence, only prima facie case is seen by the court. The defence of accused is not considered, rather it is not even at the stage when charges are framed. In the instant case, there is no process to frame the charges. The petitioner has taken excuse in reference to MOU, though defence aforesaid can be taken by leading evidence in trial and not at the initial stage. There is no element of malafide because the petitioner had issued cheque and when it was sent for encashment, dishonoured for want of funds. If malafide is alleged, it is required to be proved. The only argument is regarding non -transfer of property of M/s. Hari Agro Industries. If aforesaid argument is also considered, the cheque was given to the non -petitioner in the month of July, 2006. After giving the cheque, if property was not transferred, in common parlance, one will take action immediately thereupon. The petitioner never served notice or asked for transfer of the property of M/s. Hari Agro Industries and otherwise issue aforesaid is nothing but can be a defence of the petitioner. The notice under Section 138 of the Act was given on 14.02.2007. It was after five months from the date of issuance of cheque. The petitioner did not react in reference to MOU till the date of notice, thus question of malafide does not arise. The petition is nothing but to delay the proceedings under Section 138 of the Act.
(3.) I have given my thoughtful consideration to the rival submissions made by the parties.;