C482/684/2010 of ANUJ KUMAR SHARMA Vs SURENDRA TIWARI

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

-CRIMINAL MISC. APPLICATION (C482) No. 684 of 2010with

Stay Application No. 98 of 2012

Anuj Kumar SharmaS/o Shri Balram R/o Shakti Medical StoreDistrict Saharanpur

………………..Applicant

Versus

Surender Tiwari S/o Late Ramlakhan TiwariR/o PanditwariPolice Statio CanttDistrict Dehradun

……….......….Respondent

Shri B.B.Sharma, with Shri Karan Anand, Advocates, present for the petitioner.Shri Ramji Srivastava, Advocate, present for the respondent.

Hon’ble Prafulla C. Pant, J

Heard.

(2)By means of this petition, moved under section 482 of

Code of Criminal Procedure, 1973, the petitioner has sought quashing of the proceedings of Criminal Complaint Case No. 5305 of 2009, Surender Tiwari. vs. Anuj Kumar Sharma, relating to offence punishable under section 138 of Negotiable Instruments Act, 1881, pending in the court of Additional Chief Judicial Magistrate, IIIrd Dehradun.

(3)Brief facts of the case are that the cheque is said to have been issued by the petitioner on 20.09.2007, in favour of the complainant/respondent Surender Tiwari. The respondent, on presentation of the cheque with the bankers received communication on 26.09.2007, regarding dishonour of the cheque no. 190598. It appears that on 15.10.2007, notice was sent by the complainant to the petitioner to which he did not respond. Thereafter, criminal complaint was filed by the respondent against the petitioner on 19.11.2007, relating to offence punishable under section 138 of Negotiable Instruments Act, 1881.

(4)Learned counsel for the petitioner submitted that from the communication received by the bankers, it is clear that the cheque in question was not dishonoured on account of insufficiency of funds, as such it is pleaded that ingredients of offence punishable under section 138 of Negotiable Instruments Act, 1881, are

not made out. In reply to this, on behalf of the respondent attention is drawn to annexure-6 filed with the petition under section 482 of Cr.P.C., which shows that the ' stop payment ' was directed by the petitioner Anuj Kumar Sharma.

(5)In view of principle of law laid down in Rangappa vs. Sri Mohan (2010) 11 SCC page 441, it has been held that even in the matters of stop payment, section 138 of Negotiable Instruments Act, 1881, gets attracted. As such, this Court does not find any force in the contention of learned counsel for the petitioner challenging the proceedings pending against him.

(6)Next submission advanced on behalf of the complainant is that the complaint is barred by time. From the contents of the criminal complaint it does not appear that it is barred by time. In the circumstances, it appears that the petitioner wants to plead that actually the contents in the criminal complaint are wrong, and the complaint is barred by time. In that case, the petitioner will have to lead the evidence before the trial court that the criminal complaint is barred by time. Similarly, plea that the cheque of the petitioner was lost or that the cheque was not signed by the present petitioner, are the pleas of factual in nature. Such pleas also cannot be examined

by this Court in its jurisdiction under section 482 of

Cr.P.C. It is for the trial court to appreciate said pleas after recording evidence of the parties.

(7)In the above circumstances, this petition moved under section 482 of Cr.P.C., challenging the criminal complaint case of 2007 has no force and is liable to be dismissed summarily. Sub section (3) of section 143 of Negotiable Instruments Act, 1881, requires that the trial court shall to decide the case within period of six months. The petitioner is said to have yet not appeared before the trial court. In the circumstances, even otherwise this Court is not inclined to interfere with the trial of the case. Accordingly, the petition under section 482 of Cr.P.C., is dismissed summarily. (Stay Application No. 98 of 2012 stands disposed of).

(Prafulla C. Pant, J.)

Dt.15.05.2012