Shanti Prakash Sharma vs Prabhat Chand Rai

S.K. Jain, J.—Heard learned Counsel for the applicant Mr. S.K. Shukla and learned Counsel for the opposite party Mr. D.S.P. Singh.

This application u/s 482, Cr.P.C. has been made by Shanti Prakash Sharma to quash the order dated 2.9.2002 passed by Special Chief Judicial Magistrate, Agra in Case No. 2066 of 2005 u/s 138 of Negotiable Instruments Act, Prabhat Chand Rai v. Shanti Prakash Sharma. Learned Magistrate by the impugned order summoned the applicant to face trial u/s 138 of Negotiable Instruments Act on the basis of complaint filed by opposite party Prabhat Chand Rai.

The case of the opposite party complainant is that the applicant had issued two cheques, (each of the cheques for a sum of Rs. 50,000/-) in his favour. One cheque was issued on 26.12.2001 and other was issued on 26.1.2002. At the time of issuance of cheques applicant Shanti Prakash Sharma had assured opposite party that the cheques would be encashed and he was issuing these cheques to repay the amount which he had taken from the opposite party. The cheques were presented by the opposite party in his account with the Bank of Baroda Sanjay Place, Agra but the same was returned on 27.5.2002 with the endorsement ''funds insufficient'' in the account of Shanti Prakash Sharma. The opposite party issued a registered A.D. notice for payment of amount on 30.6.2002. On receipt of notice the applicant assured that he will pay Rs. one lac in cash but he did not pay the same. The opposite party thereafter filed a complaint u/s 138 of Negotiable Instruments Act on 12.7.2002. By the order dated 2.9.2002, the learned Magistrate, after perusal of the statement of opposite party u/s 200, Cr.P.C. and documents on record summoned the applicant.

It has been contended by the learned Counsel for the applicant in the instant case that the applicant is a practising Advocate in District Agra and he had issued three cheques to the complainant opposite party for religious charitable purpose for formation of a religious trust relating to Swami Sidh Gufa. The complainant had filed a trust formation suit bearing Suit No. 341 of 1992 in the Court of District Judge, Agra and applicant was his Advocate. There was no legal and enforceable right of paying the debt or dues accrued in favour of the complainant. That notice was not sent by the complainant at the correct address. The notice was despatched at the address B-14 New Agra, while the applicant is living at 3/1 H.I.G. Sanjay Place, Agra.

Per contra, learned Counsel for the opposite party submitted that there is no illegally in the impugned order.

I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties.

A perusal of the complaint annexed, as Annexure-2 to the application suggests that it has been dearly mentioned in the complainant that the cheques were issued against the amount which the applicant had received from the complainant opposite party. This fact is also not disputed that the cheques were issued in the name of opposite party. Therefore, I do not find any force in this contention of the learned Counsel for the applicant, that the applicant who is practising Advocate had issued three cheques for religious and charitable purpose for formation of religious trust relating to Swami Sidh Gufa. It has been specifically stated in the counter-affidavit that the notice sent by the complainant was served upon the applicant. The question whether the applicant was living at 3/1 H.I.G. Sanjay Place, Agra or B-14, New Agra is a question of fact which can be decided during trial.

In view of the above facts, 1 do not find any merit in this application and it is rejected accordingly.

Stay order granted is hereby vacated. Let a certified copy of this judgment be sent to the lower court concerned within a week.