Dismissed

Vipin Kumar v. Prem Chand

Punjab & Haryana HC19 Dec 2012CRM-M/11411/2012

Case brief

AI extract

What is this about?

Petitioner challenged the maintenance of a complaint and summoning order under Section 138 of the Negotiable Instruments Act, claiming the cheque was presented after the statutory limitation. The court held that the specific date of presentation remains a disputed fact of trial and cannot be decided in a Section 482 CrPC petition, thus dismissing the petition.

What did the court decide?

Petition for quashing of complaint and summoning order dismissed.

Vipin Kumar Vs Prem Chand — Cheque Dishonour | Punjab & Haryana HC (2012)

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CRM-M-11411 of 2012 (O&M) 1

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In the High Court of Punjab and Haryana at Chandigarh.

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CRM-M-11411 of 2012 (O&M) Date of Decision:- 19.12.2012.

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Vipin Kumar Petitioner.

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Versus

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Prem Chand Respondent

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CORAM : HON’BLE MR.JUSTICE NARESH KUMAR SANGHI.

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Present: - Mr.Karan Jund Mullanpur, Advocate, for the petitioner.

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Mr.Nonish Kumar, Advocate, for the respondent.

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NARESH KUMAR SANGHI,J.

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Prayer in this petition filed under Section 482 of the Code of Criminal Procedure is for quashing of complaint No. 219, dated 23.12.2009 (Annexure P-2), under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the N.I.Act), and the summoning order dated 01.09.2010 (Annexure P-1) passed by learned Judicial Magistrate Ist Class, Dera Bassi.

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Brief facts of the case are that the respondentcomplainant Prem Chand had filed the criminal complaint (Annexure P-2) alleging that the petitioner-accused in

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CRM-M-11411 of 2012 (O&M) 2

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discharge of his legal liability, issued cheque No. 068657, dated 05.05.2009 for a sum of ` 25,00,000/-, drawn on Punjab National Bank, Dera Bassi, in favour of the respondent-complainant. The respondent-complainant presented the above said cheque before his banker i.e. the Punjab & Sindh Bank at Dera Bassi, but the same was returned with the remarks “ Funds Insufficient ” vide memo dated 06.11.2009. After completing the formalities of the legal notice etc., the complaint (Annexure P-2) was presented before the learned Area Judicial Magistrate. The complainant was directed to lead his preliminary evidence and, thereafter, on the basis of material available on record, learned Sub Divisional Judicial Magistrate, Dera Bassi, vide his order dated 01.09.2010 (Annexure P-1) ordered the summoning of the petitioner-accused for having committed the offence punishable under Section 138 of the N.I.Act.

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Learned counsel for the petitioner contends that the complaint (Annexure P-2) was not maintainable since the impugned cheque dated 05.05.2009 was presented on 06.11.2009, i.e. beyond the limitation prescribed under Section 138(2) of N.I.Act. He further submitted that as soon as the statutory period prescribed under the N.I.Act had expired, the impugned cheque did not remain an

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CRM-M-11411 of 2012 (O&M) 3

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instrument, therefore, the complaint (Annexure P-2) was not maintainable and consequently, the summoning order (Annexure P-1) was also illegal. In support of his submissions, learned counsel has placed reliance on Amrinderpal Singh Versus Kawalpreet Kaur, 2012 ()ACD 49; and M/S. Pooja Granotes and Marbles Ltd. Versus Ispat Finance Ltd. & Anr. , II(2004) BC 329.

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On the other hand, learned counsel for the respondent-complainant submitted that the impugned cheque was presented before the bank within the limitation prescribed under the Act, however, the report with regard “insufficient funds” was made on 06.11.2009, therefore, the complaint (Annexure P-2) was maintainable and the summoning order (Annexure P-1) was correctly passed by learned court below. He further submitted that the respondent-complainant would prove on record during the course of trial that the impugned cheque was presented before the bank within the statutory period prescribed under the N.I.Act.

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Heard.

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There is no second view with regard to the authorities cited by the learned counsel for the petitioner. If it is well proved on record from the clinching material that

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CRM-M-11411 of 2012 (O&M)

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the cheque in question had been presented before the bank after expiry of statutory period of six months then the said cheque would not remain as an instrument and drawer of the said cheque would not be liable to be prosecuted for the offence under Section 138 of the N.I.Act. In the case in hand, it is clearly made out that the bank had reported on 06.11.2009 that the funds were insufficient but from the said fact it cannot be assumed that the cheque in question was presented in the bank on 06.11.2009. It might be possible that the impugned cheque was presented before the bank much prior thereto. According to the respondentcomplainant, the cheque in question was presented before the bank much prior to the date of the report by the bank, therefore, this disputed question of fact cannot be decided by this court while hearing petition under Section 482 of the Code of Criminal Procedure.

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As a sequel to the above, there is no merit in the present petition and the same is hereby dismissed.

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(NARESH KUMAR SANGHI) JUDGE

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19.12.2012. Anoop

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CRM-M-11411 of 2012 (O&M) 5

Vipin Kumar v. Prem Chand

Case brief

What is this about?

What did the court decide?

Vipin Kumar v. Prem Chand

Case brief

What is this about?

What did the court decide?

What the court decided

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