Visesh Kumar vs State of Uttarakhand and Others

Servesh Kumar Gupta, J.—Heard learned Counsel for the parties.

The sole contention against the summoning order raised on behalf of the learned Counsel for the Petitioner Visesh Kumar is that in paragraph 5 of the complaint, the prayer was made by the complainant for issuance of the summon against the accused for the offence u/s 138 of the Banking Public Finance Institution and Negotiable Instruments (Amendment) Laws, 1988, while the learned Judicial Magistrate, Kashipur has issued the summoning order dated 11.6.2007 for the offence u/s 138 of the Negotiable Instruments Act, 1881, which is an anomaly. So, this order is vitiated and liable to be quashed.

The aforesaid sole contention of the learned Counsel for the Petitioner is not acceptable at all because, firstly, on the top of the complaint, in the title itself, the complainant has mentioned his complaint u/s 138 of the Negotiable Instruments Act. Secondly, even if the name of any Act is wrongly mentioned in the prayer, then it is to be seen and rectified by the Court itself and not to be accepted as it is. The nature and kind of the offence, wherein the accused is liable to be summoned, is determined by the Court and it is humble duty of the Court itself to determine the nature of the offence and the Act, which is attracted, after taking the facts into consideration.

For the reasons stated above, this petition has no force and liable to be dismissed. The same is dismissed accordingly. Stay order, if any, is vacated.

Let a copy of this order be sent to the court below for proceeding ahead in the matter.