Ashwani Chauhan vs Mamraj

Prafulla C. Pant, J.—Heard.

By means of this petition moved u/s 482 of Code of Criminal Procedure, 1973 (for short Code of Criminal Procedure), the Petitioner has sought quashing of the proceedings of criminal complaint case No. 2572 of 2010, Mamraj v. Abid and Ors. relating to offence punishable u/s 138 of Negotiable Instruments Act, 1881, and u/s 420 I.P.C., Police Station Bhagwanpur, pending in the court of Additional Civil Judge (Sr. Div.)/Additional Chief Judicial Magistrate, Roorkee, Haridwar.

Learned Counsel for the Petitioner submitted that the trial of offence punishable u/s 138 of Negotiable Instruments Act, 1881, is a summons trial, while that of the offence punishable u/s 420 I.P.C., is a warrant trial. It is pleaded that both cannot be tried together. However, I am unable to agree with the submissions advanced on behalf of the Petitioner. Both the offences can be tried together by the procedure which applies to warrant case as it would not prejudice the rights of the Petitioner.

The next submission of learned Counsel for the Petitioner is that admittedly it was co-accused Abid who is said to have issued cheque as such, the trial court has wrongly summoned the Petitioner in respect of offences punishable u/s 138 of Negotiable Instruments Act, 1881. On that ground it is pleaded that the trial be quashed. Had it been a case of simply 138 of Negotiable Instruments Act, 1881, the argument advanced on behalf of the Petitioner could have been accepted. But there is another offence punishable u/s 420 Indian Penal Code, which is alleged against both the accused. As far as, Section 138 of Negotiable Instruments Act, 1881, is concerned at the stage of framing of the charge, the Petitioner can argue before the trial court that ingredients of offence punishable u/s 138 of Negotiable Instruments Act, 1881, are not made out against him. Other pleas taken in the petition are factual in nature.

In the above circumstances, this Court is not inclined to interfere with the trial of the case. Therefore, without expressing any opinion as to final merits of the case, the petition u/s 482 of Code of Criminal Procedure, is dismissed summarily with the observation the Petitioner is at liberty to raise the pleas taken in defence before the trial court.