Crl.Misc.No.M-40964 of 2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl.Misc.No.M-40964 of 2005
Date of Decision: 4.2.2009
Narinder Singh and another .....Petitioners
Vs.
Gagandeep Singh ....Respondent
....
CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA
****
Present : Mr. B.K. Goyal, Advocate for the petitioners.
Navjeet Singh, Advocate for the respondent.
….
RAJIVE BHALLA, J (Oral)
Prayer in this petition, filed under Section 482 of the Code of
Criminal Procedure is for quashing of a complaint filed under Section 138
of the Negotiable Instruments Act, 1881, and the summoning order dated
15.6.2005 passed thereon.
Counsel for the petitioners submits that petitioner no.1’s bank
statement clearly establishes that prior to the filing of the complaint, he has
paid the amount of the offending cheque and as the ingredients of an
offence under Section 138 of the Negotiable Instruments Act are not made
out, the complaint and the summoning order be quashed. It is further
submitted that during the pendency of this petition and pursuant to orders
passed therein, petitioner no.1 has deposited a sum of Rs.10,000/- before
the trial Court. It is, therefore, prayed that in view of the aforementioned
Crl.Misc.No.M-40964 of 2005 2
facts, the present petition be allowed and the summoning order and the
complaint be quashed.
Counsel for the respondent, however, submits that whether
petitioner no.1 has or has not paid any amount, prior to the filing of the
complaint, is a plea to be raised by the petitioner, in his defence before the
trial Court. The respondent, however, emphatically denies that any amount
was received before the filing of a complaint. It is, therefore, prayed that
as argument addressed by counsel for petitioner no.1 relates to his defence,
the present petition be dismissed.
I have heard learned counsel for the parties, perused the
complaint, as also the impugned summoning order.
The petitioner’s assertion that prior to the filing of the
complaint, he has paid the entire amount referred to in the cheque, falls
within the domain of his defence and should, therefore, be raised and
adjudicated before the trial Court. The deposit of Rs.10,000/- by petitioner
no.1, pursuant to orders passed by this Court, would be taken into
consideration by the trial Court, while deciding the complaint. As
argument raised by counsel for the petitioners relates to his defence, no
ground is made out to quash the complaint and the summoning order in the
exercise of jurisdiction under Section 482 of the Code of Criminal
Procedure. Dismissed.
However, the personal appearance of petitioner no.1, who
resides outside the territorial jurisdiction of the trial Court namely; at
Bakaro (Jharkhand) shall remain exempted, subject to his filing an
affidavit/undertaking to appear before the trial Court, as and when so
directed and incorporating an averment therein that he has no objection, if
Crl.Misc.No.M-40964 of 2005 3
evidence is recorded in his absence.
Parties are directed to appear before the trial Court on
9.3.2009.
4.2.2009 (RAJIVE BHALLA) GS JUDGE