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2010 DIGILAW 363 (UTT)

ARUNA KUMAR v. STATE OF UTTARANCHAL

2010-06-07

PRAFULLA C.PANT

body2010
JUDGMENT Hon’ble Prafulla C. Pant, J. By means of this petition, moved under section 482 of Code of Criminal Procedure, 1973, (for short of Cr.P.C.) the petitioner has sought quashing of the proceedings of criminal complaint case no. 3 of 2004 Anil Kumar vs. Smt. Aruna Kumar, relating to offence punishable under section 138 of Negotiable Instruments Act, 1881, pending in the court of Additional Civil Judge (Junior Division)/Judicial Magistrate Roorkee, District Haridwar. 2. Heard learned counsel for the parties and perused the affidavit and counter affidavit. 3. Brief facts of the case are that the complainant/respondent no. 2 filed a criminal complaint case against the petitioner Aruna Kumar alleging that the complainant had paid Rs. 50,000/- to the respondent no. 2 for helping him in providing job in a sugar mill. However, no job could be provided to the complainant who demanded back the amount paid to the petitioner. It is further alleged in the criminal complaint that later cheque no. 0780840 dated 20th of June 2003 was given to the complainant by the petitioner for an amount of Rs. 30,000/- towards the repayment. However, when said cheque was presented before bank on 09.07.2003, the same was returned with the endorsement that there were no sufficient funds. Again, on 3rd of November 2003, on the assurance of the petitioners cheque was presented before the bankers on 03.11.2003, but once again the cheque was dishonoured for insufficiency of funds. On this, complainant sent a notice dated 15.11.2003 to the petitioner but no payment was made by her hence the criminal complaint was filed on 01.01.2004. After recording statement of the complainant under section 200 Cr.P.C., and that of the witness under section 202 Cr.P.C., petitioner appears to have been summoned vide order dated 03.01.2004 to face trial, in respect of offence punishable under section 138 of Negotiable Instruments Act, 1881. Hence, this petition. 4. Learned counsel for the petitioner drew attention of this court to Annexure-3 to the petition and submitted that the cheque book of the petitioner got lost. Reliance has been placed in the case of Raj. Kumar Khurana vs. State (2009) 2 SCC (criminal) 936. I have considered the submissions advanced on behalf of the petitioner and gone through the aforesaid case law. The facts of the present case is different to the case referred. Reliance has been placed in the case of Raj. Kumar Khurana vs. State (2009) 2 SCC (criminal) 936. I have considered the submissions advanced on behalf of the petitioner and gone through the aforesaid case law. The facts of the present case is different to the case referred. In the case of Raj Kumar Khurana the cheque was returned by the bankers with endorsement “Said cheque reported lost by the drawer”. In the present case the cheque was dishonoured by the bankers on the ground of insufficiency of funds. As such the said case law is of no help to the petitioner in the present case. Apart from this, the question of loss of cheque book is a disputed question of fact, which can be looked into by the trial court. It is not desirable on the part of this court to form any opinion with incomplete evidence before it. 5. Second submission advanced on behalf of the petitioner is that the complaint is barred by the time. The notice was sent on 15.11.2003, and the criminal complaint was filed after 46 days on 01.01.2004. Having gone through the papers on record, this court finds that the argument advanced has no legs to stand. Firstly, the period of 45 days is required to be calculated from the date of the receipt of the notice. Secondly, as the last date of limitation fell during Christmas holidays the criminal complaint could be presented by the petitioner only on first of January i.e. the opening day. 6. For the reasons as discussed above, this court does not find any sufficient reason to interfere with the trial of the case. Therefore, without expressing any opinion as to final merits of this case, the petition under section 482 of Cr.P.C. is dismissed with the observation that the trial court may proceed with the matter expeditiously. The interim order dated 25.11.2005 passed by this court automatically stands vacated.