D.P.SINGH, J. - (1.) THE present petition under Section 482 of the Cr. P.C. has been preferred by the petitioner Bhuneshwar Prasad against the order of Sri Deepak Baranwal, Judicial Magistrate, Dhanbad dated 16.8.2004 in Complaint Case No. 815 of 2004, by which cognizance against the petitioner for an offence under Section 138 of the Negotiable Instruments Act has been taken and further summoned him to face trial.
(2.) THE complainant M/s. Rakesh and Company through its Managing Partner Shri Satish Kumar Jaiswal, O.P. No. 2 has appeared on notice and filed counter in this proceeding. According to the petitioner, the allegation that he issued a cheque in favour of the O.P. No. 2 which was finally dishonoured is not correct. The petitioner has disputed certain facts regarding the issuance of the cheque, its presentation before the Bank for payment and further regarding dues between the parties. According to him blank cheques were issued in favour of O.P. No. 2 by the petitioner during usual course of business. However, the petitioner has specifically directed the Bank not to make payment vide Annexure 2 as far back as on 27.9.2001. It further mentions that the petitioner has been informed regarding this vide Annexure-3 that the said account has been closed and lastly that the dispute regarding payments and dues for non-submission of Form IXC of Sales Tax was brought to the notice of the opposite party vide Annexure-4.
(3.) THESE facts have been denied in the counter affidavit filed on 4.1.2006. According to the opposite party, it is admitted fact on record that amount was due for which a cheque has been issued in favour of the petitioner under his signature it is also asserted that the instructions given by the petitioner to stop payment vide Annexure 2 and 3 are afterthought as the cheque in question vide Annexure A admittedly in the handwriting of the petitioner including the amount, dates, etc. have not been denied. Learned Counsel further pointed that the petitioner vide para 5 admits that the notice regarding bouncing of the cheque has been served upon the petitioner on 23.4.2004 which fulfills the compliance of the N.I. Act under Section 138, 141 and 142 of the N.I. Act. According to Mr. Poddar the complaint filed on 5.6.2004 is well within time and limit. It was also pointed out that at no time the issuance of cheque has been denied which is admittedly not honoured and in that event the request vide Annexure 2 made by the petitioner to stop payment of cheque in question amounts to an offence under Section 138 of the N.I. Act. Mr. Poddar referred to Sections 139, 142 of the N.I. Act in support of the argument regarding dispute of payments and non-issuance of the Sales Tax Form IXC. It was submitted that in absence of the payments no such form IXC could be issued.;