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Judgment
By making this application under section 482 of the Cr.PC, the petitioner, who is accused in the Complaint Case No. 5727C/2006 under section 138 of the Negotiable Instruments Act, 1881 (''the N.I. Act''), has sought for setting aside and quashing the order, dated 6.7.2006, whereby cognizance of offence under section 138 of the N.I. Act has been taken by the learned SubDivisional Judicial Magistrate No. 2, Kamrup, and issuance of summons against the petitioner, as accused, has been directed.
Heard Mr. R. Ali, learned counsel for the complainantpetitioner, and Mr. K. Munir, learned Additional Public Prosecutor, Assam.
The challenge to the impugned order is posed on the ground that the complainant merely stated, in his complaint, that the notice of demand was sent by registered post, with Acknowledgment Due to the address furnished by the accused at the time of execution of the agreement, where under the loan was obtained by the accused. This shows, according to Mr. R. Ali, learned counsel for the complainantpetitioner, that the complainant has not proved receipt of the notice of by the accusedpetitioner.
While considering the above submissions, made on behalf of the petitioner, what needs to be noted is that at the stage of quashing of a complaint, the court does not determine the truthfulness or veracity of the accusations made against the accused. An accusation has to be proved at the trial and not while lodging the complaint. So long as the contents of a complaint and the statement, recorded before taking of cognizance, disclose commission of offence, the complaint cannot be quashed.
In the facts and circumstances of the present case, presumption of receipt of the said notice of demand by the accused can be drawn until the time this presumption, which is reputable in nature, is actually rebutted at the trial. This application made under section 482, Cr.PC is, therefore, premature. The contents of the complaint, when considered as a whole, clearly make out a case for taking of cognizance under section 138 of the N.I. Act, 1881. The impugned order, therefore, does not suffer from any infirmity.
Because of the reasons discussed above, this criminal petition fails and the same shall accordingly stand dismissed.