Dildar Ali Butt vs Indu Sharma And Another

Sandeep Sharma, J

Being aggrieved and dissatisfied with order dated 28.1.2020 passed by learned Judicial Magistrate First Class, Arki, District Solan, Himachal Pradesh, whereby process came to be issued against the petitioner -accused in Complaint No. 33/2020, titled Indu Sharma v. Dev Raj and another, having been filed by respondent No.1 under S.138 of the Negotiable Instruments Act, petitioner (accused No.2) has approached this Court, in the instant proceedings filed under S.482 CrPC, for quashing of aforesaid summoning order as well as complaint, as detailed herein above.

Pursuant to notice issued in terms of order dated 1.12.2022, Mr. Bhim Raj Sharma, Advocate put in appearance on behalf of respondent No.1, whereas, despite service, none came present on behalf of respondent No.2, as such he was ordered to be proceeded against ex parte vide order dated 15.12.2022.

Precisely, the facts of the case as emerge from the record are that respondent No.1 Indu Sharma, instituted a complaint under S.138 of the Act in the competent court of law, alleging therein that cheque bearing No. 832677, dated 8.10.2019 amounting to Rs.3.00 Lakh having been issued by respondent No.2, towards discharge of his lawful liability, came to be dishonoured on account of insufficient funds. Since despite having received legal notice, respondent No.2 failed to make payment, respondent No.1 was compelled to institute proceedings under S.138 of the Act in the competent court of law (Annexure P-1). Respondent No.1 alleged that the petitioner herein also cheated the complainant as he instigated and abetted respondent No.2 to issue a fake cheque to the complainant, with the intention to cheat and defraud the complainant. Save and except aforesaid allegation, there is no other allegation against the petitioner.

Precisely, the grouse of the petitioner, as has been highlighted in the body of the petition and further canvassed by Mr. Aman Parth Sharma, Advocate is that since no cheque was issued by the petitioner and he had no relation of any kind with the person, who actually issued cheque, there was no occasion for the learned court below to issue process against him.

Mr. Bhim Raj Sharma, Advocate appearing for respondent No.1, though fairly admitted the factum of issuance of cheque by the accsued Dev Raj but vehemently argued that a fake cheque was issued by Dev Raj at the instance of the petitioner herein, as such, he has been rightly summoned by learned trial Court. However, above named counsel was unable to point out document, if any, available on record, suggestive of the fact that Dev Raj (respondent No.2 herein) and petitioner had any kind of relationship or they were partners in their business. Careful perusal of the averments contained in the complaint suggests that respondent No.2 had hired machine from the complainant, who at one point of time, had stopped the work on account of non-payment of rent. There is nothing on record, suggestive of the fact that the petitioner herein had ever contacted complainant for hiring of JCB or he had issued cheque towards discharge of lawful liability, if any.

In the case at hand, cheque was admittedly issued by the respondent No.2 Dev Raj, who otherwise has no connection, if any, with the petitioner. There is nothing in the complaint suggestive of the fact that the petitioner and respondent No.2, Dev Raj had any kind of partnership, and they both had hired JCB from the complainant. It is own case of the complainant that JCB was hired by respondent No.2 Dev Raj, who allegedly, with a view to discharge his lawful liability, issued cheque, which was subsequently dishonoured on account of insufficient funds.

In the legal notice issued to respondent No.2, as well as petitioner herein, the only allegation against the petitioner is that he instigated and abated respondent No.2 Dev Raj to issue fake cheque. If it is so, it is not understood, on what basis, complaint under S.138 of the Act could be filed against the petitioner herein. Question with respect to fraud if any, committed by the petitioner, cannot be gone into in the present proceedings under S.138 of the Act, rather in that regard, complainant ought to have filed appropriate proceedings before appropriate court of law.

At this stage, learned counsel for the respondent vehemently argued that the present petition is barred by limitation because, order impugned in the instant proceedings was passed on 28.1.2020, whereas present petition has been filed in the year 20222. However, having taken note of the zimni orders placed on record, this court finds that though summoning order was issue don 28.1.2020 but petitioner was served for the first time on 25.5.2022, whereafter, he filed n application for exemption, which was dismissed. Since immediately after receipt of notice/summons, petitioner approached this court, in the instant proceedings, it cannot be said that there is delay on the part of the petitioner.

In view of above, present petition is allowed. Order dated 28. 1.2020 passed by learned Judicial Magistrate First Class, Arki, District Solan, Himachal Pradesh in Complaint No. 33/2020, titled Indu Sharma v. Dev Raj and another is quashed and set aside, to the extent, process has been issued against the petitioner. Petitioner is acquitted. Interim directions, if any stand vacated.