Ashok Kumar vs State of Uttarakhand and Others

Hon''ble Prafulla C. Pant, J.—Heard.

2 By means of this petition moved u/s 482 of Code of Criminal Procedure, 1973, the petitioner has challenged the order dated 20.10.2011, passed by Special Judicial Magistrate, Roorkee, in Criminal Complaint Case No. 73 of 2011, whereby said court has rejected the application of the accused to summon the record of the speed post from the post office.

Brief facts of the case, are that, after a cheque, said to have been given by the accused to the complainant, got bounced from the bankers, criminal complaint was filed by the complainant, allegedly after giving due notice. The evidence of the complainant is over. Statement u/s 313 of Cr.P.C., also appears to have already been recorded.

The impugned order shows that several opportunities were given to the accused to adduce the defence evidence, but he is moving one after another application to delay the trial. Earlier, he moved an application for summoning the copy of regulations relating to speed post, now he moved application to summon the record relating to speed post. The trial court observing that the petitioner (accused) is delaying the proceedings, and rejected the application.

The object of giving notice u/s 138 of Negotiable Instruments Act, 1881, is only to give opportunity to the accused to make payment of the amount for which the cheque was bounced. It has been held by the Supreme Court in C.C. Alavi Haji Vs. Palapetty Muhammed and Another, that if the accused after coming to know of bouncing of the cheque even after filing of the complaint fails to pay the amount, it is no ground of throw the compliant.

Considering the spirit contained in Sub section (3) of section 143 of Cr.P.C., in the above circumstances, this court is not inclined to interfere with the impugned order passed by the Magistrate. Therefore, the petition u/s 482 of Cr.P.C., is dismissed summarily with the observation that the petitioner is at liberty to adduce his defence evidence on the next date fixed in the case (provided the trial is already not concluded). Stay Application No. 1392 of 2011 also stands disposed of.