Judgment:
Prafulla C. Pant, J.
1. By means of this petition, moved Under Section 482 of Code of Criminal procedure, 1973, the petitioner has sought quashing of the proceedings of Criminal Case No. 338 of 1996 Maqsood v. Deep Singh relating to offence punishable under Section 138 of the Negotiable Instruments Act 1881, Police Station Gang Nehar, Roorkee, District Haridwar, pending in the Court of Ist Additional Civil Judge (JD)/Judicial Magistrate, Roorkee. The petitioner has further challenged order dated 20th of January 2003, passed by III Fast Track Court/Additional Session Judge, Haridwar in criminal case No. 182 of 1998 whereby said court has refused to interfere with the summoning order dated 08.01.1997, and set aside the order dated 11.06.1998 by which Magistrate had recalled his order summoning the accused in the aforesaid criminal case.
2. Heard learned Counsel for the parties.
3. Brief facts of the case are that complainant/respondent no1 filed a criminal complaint case in January 1997, before the trial Court relating to offence punishable under Section 138 Negotiable Instruments Act, 1881, against the petitioner alleging that on 27.02.1996, the petitioner issued cheque No. 044611 for an amount of Rs. 40,000 and cheque No. 044613 for an amount of Rs. 47250 (Both amounting to Rs. 87250/-) payable to the complainant in an account of petitioner in Oriental Bank of Commerce. Complainant pleaded before the trial Court the said cheques when presented were bounced and the Bank informed that due to the insufficiency of funds payment cannot be made. On which necessary notice was issued by the complainant and when the payment was not made, criminal complaint was filed. The Magistrate initially vide order dated 08.01.1997, after recording statement of accused under Section 200 of Cr.P.C summoned the petitioner as an accused in the criminal complaint case. However, on objection of the accused / petitioner, he recalled the said order vide his subsequent order dated 11.06.1998. This made complainant Mohd. Qasim file criminal revision No. 182 of 1998. On said revision the revisional court set aside the order recalling the summoning order by the Magistrate, and directed that criminal trial shall proceed in accordance with law. Hence this petition.
4. Before this Court learned Counsel for the petitioner drew attention of this Court to the provision contained in Section 138 of Negotiable Instruments Act, 1881, which requires that the money payable to the complainant must be towards some debt or other liability. It is contended on behalf of the petitioner that the sums which are said to have been shown payable through the cheques in question were neither towards satisfaction repayment of any debt nor any liability.
5. I have gone through the copy of the complaint in question, which is filed as Annexure - 3 to the petition. There are six paragraphs in said petition. There is not a single word in the entire complaint that the petitioner had any liability to pay money to the complainant. In para 1 merely this is mentioned that the accused is an illiterate and simple person. In para 2 what has been said is that the aforesaid two cheques were issued. In para 3 it is mentioned that the cheques on being presented through District Cooperative Bank, were dishonored. In para 4, it is stated that the notice was given to the petitioner and in para 5 it has been stated that no reply was given by the complainant on sending the notice. In para 6 simply this much is stated that the petitioner has committed offence punishable under section Negotiable Instruments Act, 1881. As such this Court finds no mention of any debt or liability on the part of the petitioner, in the criminal complaint.
6. Learned Counsel for the petitioner submitted that infact the complainant had executed an agreement of sale, copy of which is Annexure-1 to the petition, which provides that the petitioner shall be liable to pay the amount of consideration at the time of execution of sale deed of the land No. 456 of complainant situated in Sheikhpuri measuring 17 biswa. It is further pleaded that neither the complainant ever executed sale deed nor delivered the possession of the land to the petitioner as such there was no liability on the part of petitioner to pay the sum. This fact is not denied by the complainant that he never executed the sale deed nor he has stated that he delivered possession of the land to the petitioner. As such it is clear that there was no liability on the part of the petitioner to make payment. I have already observed above that criminal complaint does not contain any allegation that the petitioner was liable to make any payment to the complainant. In the circumstances it cannot be said that the ingredients of the offence punishable under Section 138 Negotiable Instruments Act 1881, are made out from the criminal complaint (even if the same are taken to be true).
7. Therefore, for the reasons as discussed above the proceedings of criminal complaint case No. 338 of 1996, Maqsood v. Deep Singh relating to offence punishable under Section 138 of the Negotiable Instruments Act 1881, Police Station, Gang Nehar, Roorkee, District Haridwar, pending in the Court of I Additional Civil Judge (JD)/ Judicial Magistrate, Roorkee, are liable to be quashed. Accordingly this petition is allowed and the proceedings of the aforesaid criminal case are here by quashed.