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Judgment
Dharam Veer, J.—The controversy to be decided in all the above-said seven petitions is one and the same, hence all of them are being disposed of by this common judgment and order.
Heard learned Counsel for the parties on all the petitioners and perused the material available on record.
By means of C482 petition No. 881/05, the applicant has prayed to quash the summoning order dated 4.10.05 passed by J.M. Rudraprayag, judgment and order dated 24.11.05 passed by Sessions Judge, Rudraprayag as well as the proceedings of criminal case No. 1059 of 2005, Sunil Verma v. Surendra Verma u/s 138 of the Negotiable Instruments Act, 1881 (in short the Act), pending in the court of J.M. Rudraprayag.
By means of C482 petition No. 893/06, the applicant has prayed to quash the summoning order dated 26.9.06 passed by C.J.M. Rudraprayag as well as the proceedings of criminal case No. 716 of 2006, Sunil Verma v. Surendra Verma u/s 420 IPC and 138 of the Act, pending in the court of C.J.M. Rudraprayag.
By means of C482 petition No. 56/07, the applicant has prayed to quash the summoning order dated 12.1.07 passed by C.J.M. Rudraprayag as well as the proceedings of criminal case No. 07 of 2007 Sunil Verma v. Surendra Verma u/s 420 IPC and 138 of the Act, pending in the court of C.J.M. Rudraprayag.
By means of C482 petition No. 262/07, the applicant has prayed to quash the summoning order dated 5.4.07 passed by C.J.M. Rudraprayag as well as the proceedings of criminal case No. 115 of 2007, Sunil Verma v. Surendra Verma u/s 420 IPC, pending in the court of C.J.M. Rudraprayag.
By means of C482 petition No. 663/07, the applicant has prayed to quash the summoning order dated 10.8.07 passed by C.J.M. Rudraprayag as well as the proceedings of criminal case No. 397 of 2007, Sunil Verma v. Surendra Verma u/s 138 of the Act, pending in the court of C.J.M. Rudraprayag.
By means of C482 petition No. 98/08, the applicant has prayed to quash the summoning order dated 18.1.08 passed by C.J.M. Rudraprayag as well as the proceedings of criminal case No. 38 of 2008, Sunil Verma v. Surendra Verma u/s 138 of the Act, pending in the court of C.J.M. Rudraprayag.
By means of C482 petition No. 497/08, the applicant has prayed to quash the summoning order dated 19.6.08 passed by C.J.M. Rudraprayag as well as the proceedings of criminal case No. 649 of 2008, Sunil Verma v. Surendra Verma u/s 138 of the Act, pending in the court of C.J.M. Rudraprayag.
In nutshell, the facts of the case are that the complainant/ respondent as well as the petitioner are the Jewellers in the market of Rudraprayag town and both are near relatives of each other. This relationship was the cause of trust and transaction between the parties. As alleged in the complainant, the petitioner Surendra Verma by taking the advantage of this trust, hired some golden jewellery worth rupees more than Eight Lacs from the complainant Sunil Verma. The price of the Jewellery was agreed to be paid by eight post-dated cheques of different amounts. A written agreement dated 28.2.2005 was also executed in order to affirm the mutual faith.
The post dated cheques issued by the petitioner to the complainant are having the numbers (1) Cheque No. 393814 dated 6.8.2005, (2) Cheque No. 470136 dated 6.12.06, (3) Cheque No. 370135 dated 6.7.2006, (4) Cheque No. 370127 dated 6.11.2006, (5) Cheque No. 370126 dated 6.12.2006, (6) Cheque No. 370125 dated 6.5.2007, (7) Cheque No. 398320 dated 6.10.07 and (8) Cheque No. 370359 dated 3.2.2008. Thereafter, when the complainant, on the respective dates of the Cheques, presented them in the Bank, those cheques were dishonored by the Bank with the endorsement "having insufficient funds" in the account of the petitioner. Thereafter, the notices were sent to the petitioner but even when he did not pay back the money to the complainant, he filed separate complaints against the petitioner. On the basis of those complaints, the petitioner has been summoned by the trial court separately in all the above-said petitions, hence these petitions have been filed.
Learned Counsel for the petitioner submitted that the court below erred in summoning the petitioner u/s 138 of the Act. I do not find any force in this argument. Before going any further, for the sake of convenience, the relevant dates with the above-said respective petitions are being quoted as below: -
C482 Petition No.
Date & No.ofCheque
Date of Dishonour
Reason for Dishonor
Date of Notice
Date of Complaint
881/2005
398319 dated 6.8.05
10.8.2005
Insufficient Funds
16.8.2005
16.9.2005
893/06
370135 dated 6.7.06
28.7.2006
Insufficient Funds
12.8.2006
11.9.2006
56/07
370127 dated 6.11.2006
9.11.2006
Insufficient Funds
5.12.2006
4.1.2007
663/07
370125 dated 6.5.2007
10.5.2007
Insufficient Funds
23.5.2007
22.6.2007
98/08
398320 dated 6.10.2007
19.11.2007
Insufficient Funds
4.12.2007
14.1.2008
497/08
370359 dated 6.3.2008
09.5.2008
Insufficient Funds
21.5.2008
13.6.2008
On a bare perusal of the Chart as quoted above, it would become crystal clear that in all the Six C482 Petitions i.e. No.881/05, 893/06, 56/07, 663/07, 98/08 and 497/08, compliance as provided u/s 138 of the Act, has been made without their being any inordinate delay and, therefore, in all the said six petitions, the offence punishable u/s 138 of the Act against the petitioner prima facie made out and the trial court has rightly summoned the petitioner u/s 138 of the Act.
Learned Counsel for the petitioner next argued that in two petitions i.e. C482 petition No. 893/2006 and 56/2007, along with Section 138 of the Act, the petitioner has also been summoned u/s 420 IPC. He further submitted that even in C482 petition No. 262/2007, the petitioner has been summoned only u/s 420 IPC, which is not as per law. I find force in this argument advanced on behalf of the petitioner.
On a bare perusal of the complaint filed against the petitioner, it reveals that even not a single allegation has been made in the complaint, which may constitute any offence of cheating against him. It is relevant to mention the definition of Cheating, as defined u/s 415, which reads as under: -
Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat
On a bare perusal of the complaint, it does not reveal that any of the ingredients of the Cheating, as quoted above, are made out against the petitioner. It is also pertinent to mention here that in the above-said seven petitions, except those three petitions i.e. C482 No. 893/06, 56/07 and 262/2007, the petitioner has not been summoned u/s 420 IPC in other petitions, though the dispute between the parties is the same. As such, the offence punishable u/s 420 IPC is not made out against the petitioner and the proceedings under that Section 420 IPC before the court below are quashed. However, as mentioned above, the ingredients of Section 138 of the Act are completely made out against the petitioner and the petitioner has rightly been summoned u/s 138 of the Act and the trial will proceed against him only u/s 138 of the Act. The trial court will decide the case after recording the evidence of the complainant as well as of the accused and also on the basis of the appreciation of the evidence as per law. If the allegations made in the complaint as well as the documentary evidence brought on record by the complainant, are taken at their face value and accepted in their entirety, I am of the view that the petitioner has rightly been summoned by the trial court u/s 138 of the Act. The trial court will decide the case after recording the evidence adduced before it.
For the reasons recorded above, C482 petition No. 262/2007 is allowed. Proceedings u/s 420 IPC against the petitioner are quashed.
C82 petitions No. 881/2005, 663/2007, 98/2008 and 497/2008 are devoid of merit and are dismissed accordingly. Interim orders, if any, are vacated. Proceedings u/s 138 of the Act shall continue against the petitioner as per law.
C482 petitions No. 893/2006 and 56/2007 are partly allowed. Proceedings u/s 138 of the Act shall continue against the petitioner as per law. However, the proceedings u/s 420 IPC are quashed. The trial court is directed to proceed as per law.