JUDGMENT
Vinod Prasad, J.
1. Geeta has approached this Court through the instant Criminal Misc. Application No. 89 of 2006, Under Section 482 Cr. P.C., with the prayer to quash the proceedings of Complaint Case No. 266/04, Under Section 138 of Negotiable Instruments Act, read with Section 420 IPC, pending in the court of Chief Judicial Magistrate, Saharanpur with the nomenclature Smt. Manju v. Geeta. The subsequent prayer is for stay of further proceedings of the aforesaid complaint case till the disposal of present application in this Court.
2. The factual matrix of the case has got its genesis in the complaint filed by Smt. Manju w/o late Prithvi Singh on 13.1.2004 in the court of CJM, Saharanpur being complaint case No. 266/04 with the allegations that husband of the complainant late Prithvi Singh was the employee in Railways and the complainant with her small children was living alongwith her parents. Accompanied by her father and sisters the complainant used to visit the house of the accused Smt. Manju and resultantly was closely intimated with her. Accused applicant offered the complainant that her father is going to purchase the land for carving out plots and for the said purpose they require Rs. 60,000/-. They assured the complainant Smt. Manju that her money will be repaid from the sale proceeds of the plots or in the alternative she will get a plot of 100 square yards. Reposing trust in them and believing the offer to be genuine, the complainant gave Rs. 60,000/- to the applicant accused Smt. Geeta on 25.7.2003 in the presence of her sister Babita, Smt. Satto w/o Yash Pal, Manoj and Deepak. In lieu the applicant accused Geeta issued two cheques of Rs. 30,000/- each to the complainant being cheque No. 104999 and 105000, both of Panjab and Sindh Bank drawn from account No. 12297 dated 5.6.2003. with the assurances that cheques will be honored after few months. The complainant Smt. Manjoo presented the aforesaid cheques in her Panjab National Bank for encashment on 5.12.2003 but the same were dishonored by Panjab and Sindh Bank with the note that account has been closed and it returned the aforesaid cheques to the complainant with the memos dated 8.12.2003 and 18.12.2003. The complainant gave registered notice to the accused applicant Smt. Geeta on her correct address asking her to repay the cheque amount but the notice was also returned on 3.1.2004 with the endorsement that addressee could not be found.
3. As the complainant was cheated to a tune of Rs. 60,000/-, therefore, she layed the complaint in the court of CJM, Saharanpur as mentioned above, appending therewith the photocopy of both the cheques, registered notice sent by the her, carbon copy of the notice and the original registry receipt. Learned Magistrate took the cognizance of the offence and examined the complainant Under Section 200 Cr. P.C. She however did not examine any witness Under Section 202 Cr. P.C. Learned Magistrate finding the prima-facie case, summoned the present accused applicant Geeta for offences Under Section 138 of N.I. Act as well as Under Section 420 IPC, vide his order dated 15.3.2004 fixing 15.4.2004 for appearance of the accused. Geeta aggrieved by her summoning order preferred criminal revision No. 194 of 2004 Geeta v. State and another before the Sessions Judge, Saharanpur on 15.6.2004, which was transferred to the court of Additional Sessions Judge Court No. 6, Saharanpur for disposal. Her criminal revision was dismissed by the lower revisional court, vide its order dated 7.10.2005 annexure 4 to the affidavit, hence the present Criminal Misc. Application by the accused with the prayer to quash the entire proceedings.
4. I have heard Sri Mayank Agrawal, learned Counsel for the applicant, Sri Pankaj Tyagi and Smt. Archna Tyagi on behalf of respondent No. 2, as well as learned AGA.
5. Sri Mayank Agrawal, learned Counsel for the applicant raised two submissions. Firstly, he contended that the cheques dated 5.6.2003 were presented in the Bank after the period of its validity by the complainant. Consequently the cheques were bounced because of “out of date” as is clear from the advise/memo of the bank appended as annexure No. 5 to the affidavit filed alongwith the application. He further contended that even though the account was closed but since the cheques were presented after the period of its validity, it could not have been honored and therefore, no offence Under Section 138 N.I. Act is made out against the applicant. He further contended that no offence Under Section 420 IPC is also made out, as on the date on which the cheques were issued the applicant had sufficient money in her account.
6. Sri Pankaj Tyagi on the contrary contended that since the cheques were bounced, because the account was closed, offence Under Section 138 N.I. Act is made out against the applicant. He further contended that as the accused had no intention to pay the amount, therefore, offence Under Section 420 IPC is also made out against the applicant. He submitted that this application is merit less and deserves to be rejected.
7. Considering the rival submissions as has been advanced it is clear that the cheques which were given by the applicant accused Geeta was presented in the bank after the date of its validity, as is clear from the memo given by the Bank. The learned Counsel for the respondent Sri Pankaj Tyagi could not dispute the fact that the Bank memo did mention that the cheques were presented “out of date”. Since for making out of offence Under Section 138 N.I. Act the presentation of cheques during its validity is sine-qua-non, therefore, on the facts of the case, no offence Under Section 138 of N.I. Act is made out against the applicant. This is clear from proviso to Section 138 of N.I. Act which provides as follows:
provided that nothing contained in this section shall apply- ‘as the cheque has been presented to the bank within a period of six months from the date on which its drawn or within the period of its validity’ which ever is earlier.
8. It is thus clear that Section 138 of N.I. Act will be infused with life only when the cheque is represented within six months or within the period of its validity which ever is earlier.
9. Admittedly in this case the cheques were not presented in the Bank for its encashment within the period of six months, as is clear from the memo of the Bank. Consequently, in view of the aforesaid proviso Section 138 N.I. Act is not at all attracted in the present case. In this view of the matter the fact that the account was closed by the drawer of the cheques is of no helps to the complainant as the applicant cannot be brought within the amby it of offence Under Section 138 of N.I. Act. Thus, so far as, offence Under Section 138 of N.I. Act is concerned, the same is not made out against the applicant and the learned trial court committed an error in summoning the applicant accused for the said offence by its order dated 15.3.2004. The lower revisional court also committed an illegality in dismissing the revision filed by the accused applicant by its impugned order dated 7.10.2005.
10. Now coming to the offence Under Section 420 IPC, it is also clear from the perusal of the complaint that there was offer of two options with the complainant. Either to get cheques encashed or in alternative to get a plot of 100 squire yards. It is not mentioned at all in the complaint that no plot was offered to the complainant by the accused. In this view of the matter it is difficult to hold that offence Under Section 420 IPC is made out against the applicant. From the definition of offence of cheating, mentioned in Section 415 IPC, it is clear that the accused should have an intention to cheat from the very inception. In the facts of the present case it is not clear that the accused had an intention to cheat from the very inception because the alternative option, which according to the complainant, was available to her was never availed off by her. Had she availed off the second option and would not have got the plot then probably it could have been said that she was cheated. Moreover, subsequent to the bouncing of cheques also she did not availed off the second option. It was stated by counsel for the applicant that the accused was ready to give a plot to the complainant which she refused to take and it was because of this reason that complainant had kept mum over the second alternative available with her. Sri Tyagi could not dispute this fact and ultimately had too conceded that there is no averment at all in the complaint that the plot was also not offered to the complainant. In this view of the matter since there was a contingent alternative available to the complainant to get worth of her money, though not in the terms of paper currency but in terms of real estate, which she did not availed of at all that I am of the view that no offence is made out against the accused applicant Under Section 420 IPC as well. These two important aspects of the matter have been completely ignored by the courts below and hence the summoning order against the applicant cannot be sustained.
11. From the discussions made above, I find that from the averments, made in the complaint, no offence is made out against the applicant, either Under Section 138 of N.I. Act or Under Section 420 IPC, for which she has been summoned.
12. In result this application is allowed.
13. Criminal Complaint Case No. 266/04 Smt. Manju v. Geeta, pending before the Chief Judicial Magistrate, Saharanpur, Under Section 138 of N.I. Act read with Section 420 IPC as well summoning order of the applicant dated 15.3.2004 passed in the aforesaid case are quashed.
14. Let a certified copy of this order be sent to the trial court for its intimation within a period of two weeks from today.