Dismissed

Madhu Khosla & Anr. v. P.S. Koak

Punjab & Haryana HC24 Aug 2011CRM-M/1981/2011

Case brief

AI extract

What is this about?

Petitioners sought quashing of a complainant notice for cheque dishonour under Section 138 NI Act solely on grounds of mechanical summoning and factual defects like improper service. The High Court dismissed the petition, holding these are factual issues triable only after evidence is led, dismissing the writ application for lack of merit.

What did the court decide?

Petition for quashing of complaint and summoning order under Section 138 NI Act and Section 482 Cr.P.C. dismissed.

Madhu Khosla & Anr. Vs P.S. Koak — Cheque Dishonour | Punjab & Haryana HC (2011)

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CRM No. M-1981 of 2011 1

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IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH.

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Crl. Misc. No. M-1981 of 2011 (O&M) Date of decision: 24.8.2011

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Smt. Madhu Khosla & another ...Petitioners

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Versus

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P.S. Koak ...Respondent

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CORAM: HON'BLE MR. JUSTICE RAJAN GUPTA

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Present: Mr. Adish Gupta, Advocate for the petitioners. Mr. Pankaj Maini, Advocate for the respondent.

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Rajan Gupta, J (oral).

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In this petition under Section 482 Cr.P.C. the petitioners seek quashing of complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as “the Act”) and summoning order passed pursuant thereto.

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Learned counsel for the petitioners contends that impugned summoning order has been passed mechanically, no legal notice, as envisaged by the Act was served and those persons have been implicated who had no role to play in business of the firm. Thus, the complaint and consequential summoning order passed therein deserve to be quashed.

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Learned counsel for the respondent, however, vehemently opposed the prayer. He submits that all the issues raised in this petition are matters, which can be considered by the trial court after some evidence is led before it and thus, no interference in inherent jurisdiction

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CRM No. M-1981 of 2011 2

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of this court is called for. He has further contended that summoning order was passed on 19^th October, 2007 and the present petition has been filed now in the year 2011. Thus, only effort of the petitioners is to delay the proceedings.

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I have heard learned counsel for the parties and given careful thought to the facts of the case.

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It appears that the accused issued a cheque bearing No.794418 dated 1^st March, 2007 for a sum of Rs.25,93,250/- in favour of the complainant. The said cheque was presented for encashment. However, it was returned with the remarks “Funds insufficient” . The complainant, thus, served a legal notice on the accused. On failure on their part to pay the amount in question, complaint was instituted before the competent court of jurisdiction. Impugned summoning order has been passed pursuant thereto.

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A perusal of the summoning order shows that after recording preliminary evidence and the documents tendered before it, the trial court came to the conclusion that accused needed to be summoned for commission of offence under Section 138 of the Act. The order was passed on 19^th October, 2007. It has been impugned before this court now raising various issues as to validity of the legal notice, improper service on the accused and non-application of mind by the court below before summoning the accused to face trial. The arguments of the learned counsel for the petitioners are, however, not convincing. All the issues are factual in nature which can only be gone into after evidence is led before the court below. The same cannot be

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CRM No. M-1981 of 2011 3

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decided in inherent jurisdiction of this court as no other evidence except the affidavits sworn in support of averments made in the petition is available. I am, thus, of the considered view that the present petition is without any merit. The same is, thus, dismissed.

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The petitioners shall, however, be at liberty to raise all their

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pleas before the trial court at the appropriate stage.

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(RAJAN GUPTA) JUDGE 24.8.2011 'rajpal'

Madhu Khosla & Anr. v. P.S. Koak

Case brief

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Madhu Khosla & Anr. v. P.S. Koak

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