Sachin Suneja vs State and Others

Shiv Narayan Dhingra, J.—By this petition u/s 482 Cr.P.C the Petitioner has assailed an order dated 3rd September 2010 whereby an application u/s 263(g) Cr.P.C of the Petitioner was dismissed He has also sought quashing of the criminal complaint u/s 138 of Negotiable Instruments Act made by the complainant.

After summoning order of learned MM, the Petitioner on a complaint of the Respondent/ complainant u/s 138 of Negotiable Instruments Act for dishonour of cheque, the Petitioner made an application u/s 263(g) of Cr.P.C stating therein that the payment of the cheque was stopped by him and it was not dishonoured on account of insufficiency of funds. The cheques in question were issued as a security and were misused by the complainant. The other defence taken was that the notice issued by the complainant was beyond the period of limitation. The learned trial court considered the application of the Petitioner and found that the evidence in the case was going on and the matter was listed for cross examination of witnesses. As far as serving of legal notice within the statutory period was concerned, the trial court observed that the debit advice was dated 31st October 2009 and the legal notice was served on 30th November 2009. Thus, the notice was absolutely within the period of limitation and he listed the case for P.E.

Where a person makes an application u/s 263(g) disclosing his defence, he can ask the trial court to decide his application on merits after making a statement that he does not want to cross examine the witness and does not want to produce defence, evidence already on record given by complainant be considered to decide the case. Where an accused goes for recalling the witnesses on the basis of his defence, he cannot simultaneously take a plea that the complaint should be dismissed on the basis of his defence. Only where accused makes a statement that he has not to examine any witness and he was prepared to argue the case on the basis of documents on record, the trial court has to finally dispose of the complaint u/s 138 of NI Act in a summarily manner by recording this statement of the accused. Where an accused does not make a statement about his accepting the facts and argue the matter only on the basis of documents, he cannot seek dismissal of the complaint on the basis of his defence.

I find no merits in this petition. The petition is hereby dismissed with no orders to costs.