The court held that at the summoning stage, only a prima facie case is to be considered, and the defence cannot be evaluated, emphasizing the need for evidence during trial.

JUDGMENT :

Virender Singh, J.

Petitioner-Anju Tomar has filed the present petition, under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’), for quashing of complaint, bearing No.RBT 615-3 of 18/15, titled as ‘M/s Himachal Pradesh Commercial CorporationVs. Anju Tomar’, filed by the respondent, under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘NI Act’), as well as, the summoning order dated 07.10.2015, passed by the Court of learned Judicial Magistrate First Class, Court No.3, Shimla (hereinafter referred to as the ‘trial Court’), along with the proceedings resultant thereto.

2. For the sake of convenience, the parties to the present lis are, hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court.

3. Brief facts, leading to filing of the present petition, may be summed up, as under:-

4. The complainant has filed the complaint, under Section 138 of the NI Act, upon which, the learned trial Court has issued the process, vide order dated 07.10.2015. The accused has challenged the said summoning order dated 07.10.2015, on the ground that the complaint, which has been filed, against her, is false one and as per the information, obtained by the accused, under the Right to Information Act, 2005 (hereinafter referred to as the ‘RTI Act’), no case is made out, under Section 138 of the NI Act.

5. To buttress his contention, learned counsel, appearing for the accused, has pleaded that the accused has purchased the clothes, amounting to Rs.10,44,398/-, from the complainant. In this regard, accused has paid Rs.44,398/-, in cash and issued cheque No.676477 dated 21.08.2015, amounting to Rs.6,75,000/-.

6. According to the accused, the complainant is a money lender and her husband had raised a loan of Rs.50,000/- from the complainant and at that time, he has charged the interest @10% per month, against the said loan. He has handed over only Rs.45,000/- to the husband of the accused.

7. It is the further case of the accused that at that time, complainant had also obtained unsigned blank cheque of the accused. In this regard, the accused has relied upon the information, which has been obtained, under the RTI Act, according to which, there are more than 100 cases, filed under the NI Act, by the complainant.

8. Reiterating the fact that the complainant is doing the illegal business of money lending, it has been averred that no case is made out against the accused, under Section 138 of the NI Act.

9. To substantiate her stand, it is the case of the accused that the complainant has also filed another case, under Section 138 of the NI Act, bearing case No.33-3 of 18/15, whereas, the cheque No.676476 dated 17.09.2015 is stated to have been issued, against Bill No.4065 dated 05.06.2015. However, in the present case, the respondent has used the cheque No.676477 dated 21.08.2015, that too, against Bill No.3830 dated 12.07.2013.

10. On the basis of above facts, a prayer has been made to allow the petition, as prayed for.

11. Along with the petition, the accused has annexed the photocopy of the complaint, filed against her, affidavit, in support of the complaint, list of witnesses, copy of cheque, copy of the return memo, copy of legal notice and copy of Bill No.3830 dated 12.07.2013.

12. Apart from this, the information, with regard to the complaints, filed under Section 138 of the NI Act, on behalf of the complainant, from the office of State Public Information Officer at District Level, Senior Civil Judge- cum-CJM, Shimla H.P. has also been obtained, by the accused.

13. According to the said information, 9 cases are pending, before the Court of learned Senior Civil Judge; 4 cases, by way of the criminal appeal, are pending, before the Court of learned Additional District & Sessions Judge (II), Shimla; 22 cases are pending, before the Court of learned Senior Civil Judge-cum-ACJM, Court No.1, Shimla; 3 cases are pending in the Court of learned S