H.R. Panwar, J. - (1.) Both these criminal miscellaneous petitions under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Code" hereinafter) involve common questions of law and facts and, therefore, with the consent of the learned counsel for the parties, they are being heard and decided together.
(2.) The complainant/non-petitioner No.2 in both the cases filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act" hereinafter) against the present petitioner on the ground that the cheques were issued by the petitioner in favour of the complainant/non-petitioner No.2. On presentation to the bank, the cheques were returned unpaid and dishonoured on account of "insufficient funds" to the account of the petitioner. A statutory notice demanding the cheques amounts to be paid to the complainant within fifteen days from the date of receipt of the notice, was served on the petitioner. Despite service of the notice, the petitioner failed to pay the cheques amounts and, therefore, within the statutory period of limitation, a complaint was filed against the petitioner under Section 138 of the Act. The notice of complaint was served on the petitioner. The petitioner appeared before the Court of Additional Chief Judicial Magistrate No.1, Sri Ganganagar (for short, "the trial Court" hereinafter). The substance of accusation was read over to the petitioner and the matter was posted for recording the evidence of the parties. At the stage of recording the evidence of the parties, an application was filed by the petitioner before the trial Court stating therein that admittedly the cheques were issued by the petitioner in pursuance of an arbitration award made in favour of the complainant, by which the petitioner was required to pay certain amount, for which the the petitioner had issued the cheques, but subsequently the arbitration award was challenged before the District Judge, Sri Ganganagar and the arbitration award came to be set aside by the District Judge, therefore, there being no legal liability to pay the amount, the proceedings should be dropped. The trial Court came to the conclusion that the order of the District Judge setting aside the arbitration award has been challenged before the High Court by the complainant by way of filing an appeal, which is pending before this Court.
(3.) Learned counsel for the complainant/non-petitioner No.2 submits that against the order of the District Judge setting aside the arbitration award, an appeal, being S.B. Civil Miscellaneous Appeal No. 04775/2004, has been preferred before this Court. The trial Court, while dismissing the application filed by the petitioner, held that it cannot be said that the matter has touched the finality and the order of the District Judge is subject to an appeal and if the order is ultimately revised or modified or set aside then the position will be altogether different and if the proceedings are dropped then there is no provision in the Code to restore the proceedings if the complainant succeeds in appeal before this Court and, therefore, held that it would be appropriate to decide the issue at the time of final decision in the complaint case.;