Point of Law: Even a blank cheque leaf, voluntarily signed and handed over by accused, which is towards some payment, would attract presumption under Section 139 of Negotiable Instruments Act.

JUDGMENT :

Vivek Singh Thakur, J.

Petitioner Ravi Kumar has approached this Court for quashing Criminal Complaint No.163/2 of 2016, titled as Prem Singh v. Ravi Kumar, filed by complainant-respondent No.2 Prem Singh (hereinafter referred to as complainant), pending in the Court of Additional Chief Judicial Magistrate, Nalagarh, District Solan, Himachal Pradesh (hereinafter referred to as Magistrate), including summoning order dated 18.2.2017, passed by the Magistrate on the basis of complaint filed by complainant and material placed on record therewith.

2. Respondent No.1 is State of Himachal Pradesh, which has not been arrayed as a party by the complainant in the complaint filed under Section 138 of the Negotiable Instruments Act (hereinafter referred to as NI Act), but has been arrayed as respondent No.1 in the present petition. There is no role of the State in the matter and no relief has been sought against respondent No.1. Petitioner and complainant are the contesting parties.

3. From the material on record, certain admitted facts have emerged, according to which an Agreement dated 8.9.2015 was entered upon between the petitioner and complainant, whereby petitioner had agreed to provide 51 quintals of extracted material from Khair Wood at a rate Rs.300/- less than the prevailing market rate at relevant point of time and as per agreement the aforesaid material was to be supplied by the petitioner to the complainant on or before 15.4.2016. As per agreement, Rs.15,00,000/- had been paid by complainant in advance to petitioner and Rs.20,00,000/- was to be paid on or before 18.10.2015 and the remaining amount of Rs.10,00,000/- was to be paid at the time of felling of trees. For default in supplying material, complainant was given right to take action, in accordance with law, to recover double of the amount paid in advance and in case of failure of complainant to receive delivery of the material, petitioner was given right to forfeit the advance money; and the petitioner had also issued a Cheque No.325699, drawn at Oriental Bank of Commerce Chandigarh, in favour of complainant, as a Security Cheque, enabling the complainant to recover the advance money in case of default on the part of petitioner.

4. Execution of Agreement and issuance and supply of Cheque as Security Cheque, referred supra, are admitted facts.

5. Complainant filed a complaint before the Magistrate, under Section 138 of NI Act, on 1.7.2016 and after recording preliminary evidence of the complainant, vide order dated 18.2.2017, the Magistrate, after arriving a conclusion that there were sufficient grounds to proceed against the accused (petitioner) for commission of offence under Section 138 of NI Act, issued summons to the petitioner returnable for 22.4.2017. However, petitioner could not be served despite issuance of Non-bailable Warrants against him. Summons/ warrants issued for his service were received back, sometimes none was found at his home, sometimes only his wife was available at home.

6. In aforesaid circumstances, proceedings under Section 82 of the Code of Criminal Procedure were initiated against the petitioner. In the meanwhile, petitioner had approached this Court by filing present petitioner and he also appeared before the Magistrate on 3.4.2019. However, on that date case was adjourned by the Magistrate for 27.4.2019, on which date, on having been informed about stay granted by this High Court, case was adjourned by the Magistrate for further order.

7. In the present petition, petitioner has admitted issuance of Security Cheque as incorporated in the Agreement, with further submission that prior to filing of the complaint a compromise was entered between the parties on 7.3.2016, wherein supply of 2950 quintals of prepared wood by the petitioner to the complainant had been admitted. It has been further stated that petitioner had received Rs.1,64,00,000/- from the complainant but not Rs.47,00,000/- as claimed by the complainant and as the petitioner has