Pradeep Kumar v. State of Uttaranchal(Uttarakhand)

The same was challenged before revisional court in criminal revision no. 37 of 2004, which was dismissed vide order dated

10.05.2005. Hence this petition.

#5. The impugned order dated 10.5.2005, passed in criminal revision no. 37 of 2004 shows that since the revision against the summoning order was not maintainable, nor the Magistrate had power to recall the summoning order as such no relief could be granted to the petitioner by the courts below.

#6. Learned counsel the petitioner submitted that the cheque in question was dishonoured by the Bank not on the ground of insufficiency of funds but on the ground of 4 ‘stop payment’. Relying on the principle of law laid down in Raj Kumar Khurana vs. State (2009) 2 SCC (Cri.) 936. It is contended that since the cheque in question was not dishonoured on the ground of insufficiency of funds as such the ingredients of the offence punishable under section 138 of Negotiable Instruments Act, 1881, are not made out. However, on this ground, this Court is not inclined to interfere with the trial of the case, after the principle of law laid down by three Judges of the Apex Court in Rangappa vs. Mohan AIR 2010 SC page 1898, in which it has been held that even if the cheque is bounced on the ground of instruction ‘stop payment’ given to the Bank, the ingredients of the offence punishable under section 138 of Negotiable Instruments Act, 1881, can be shown to have been made out. Similar view has earlier been expressed by the Supreme Court in Goaplast pvt. Lts. Vs. Shri Chico Ursula D’Souza 2003 (1) Apex Court judgment page 506 & Goaplast pvt. Lts. Vs. Shri Chico Ursula D’Souza 2004 (1) Apex Court judgment page 273, and it has been held that merely for the reason that the drawer had issued instruction to the bank for stoppage of payment or informed the drawee 5 to present the cheque, would not preclude an action under section 138 of the Act, Therefore, the criminal complaint filed against the petitioner is not liable to the quashed on that ground. The view taken by this Court in S.C. Mathur vs. State 2010 (1) UD 583 does not hold the field after the case of Rangappa (Supra) decided by the three Judges of Apex Court.

#7. However, in the present case apart from the above mentioned instruction, there are other facts on the record, which show that filing of criminal complaint in question is abuse of process of law. Not only the petitioner had informed the Bank about the loss of the cheque, and registered the case of cheating and forgery against the complainant (respondent no. 2) but there was report of the police that the complainant is a cheat who is facing several cases of cheating. That too would not have been sufficient ground for interference by this Court under section 482 of Cr.PC., as it is a matter to be seen by the trial court whether, actually cheques was lost as alleged by the petitioner or not. But the most important fact in the present case is that even the drawee bank itself informed the 6 drawer bank that the cheque appears to be forged one. Taking the said consideration which is apparent Annexure-2 petition, circumstances narrated above, this Court finds that the petitioner cannot be allowed to be harassed in such criminal complaint case.

#8. For the reasons as discussed above, the petition under section 482 of Cr.P.C., is allowed. The proceedings of impugned criminal complaint case no. 73 of 2001 Mehandi Hassan vs. Pradeep Kumar, relating to offence punishable under section 138 of Negotiable Instruments Act, 1881, pending before the Judicial Magistrate-Ist Class, Kashipur, District Udham Singh Nagar, against the petitioner Pradeep Kumar, are hereby quashed.

29.06.2010 Parul (Prafulla C. Pant, J.)