JUDGMENT

Harkesh Manuja, J. (Oral)

By way of present petition filed under Section 482 Cr.P.C., challenge has been made to the summoning order dated 28.09.2017 arising out of a complaint bearing No.282 of 2017 filed at the instance of respondent by invoking section 138 of the Negotiable Instruments Act.

2. Facts leading to the case are that on account of dishonour of cheque bearing No.041612 amounting to Rs.4,25,000/-, a complaint under section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') came to be filed at the instance of respondent-bank against the petitioner wherein he was ordered to be summoned vide order dated 28.09.2017 passed by the Sub Divisional Judicial Magistrate (Ganaur).

3. Challenging the complaint as well as the summoning order arising therefrom, learned counsel for the petitioner submits that an alternate remedy under Section 102 of the Haryana Co-operative Society Act, 1984 was also available with the respondent-Bank by invoking arbitration proceedings against the petitioner for effecting recovery from him as his land already stood mortgaged with the respondent-Bank against the loan transaction. Learned counsel for the petitioner also submits that the complaint was filed at the instance of respondent through its Branch Manager, without there being any resolution passed in his favour, who thus, was not competent to file the same.

4. No one appears on behalf of respondent-bank.

5. I have heard learned counsel for the petitioner and gone through the paper book.

6. Mere fact that alternate remedy under Section 102 of the Haryana Co-operative Society Act, 1984 is available to the respondent-Bank for the purpose of effecting recovery by invoking arbitration proceedings against the petitioner can not be treated as a bar against invoking of Section 138 of the Act at the instance of respondent-Bank in case of dishonor of cheque issued in its favour. To my mind, both the remedies i.e. initiation of arbitration proceedings under Section 102 of the Haryana Co-operative Society Act, 1984 as well as complaint under section 138 of the Act, can go hand in hand, the two being separate and distinct remedies. The remedy under the Haryana Co-operative Society Act, 1984 can be invoked for the purpose of effecting recovery of the amount by the bank whereas, Section 138 of the Act is to be invoked for the purpose of enforcing the punishment upon the drawer of the cheque on fulfillment of mandatory conditions as enjoined under the provisions of the Negotiable Instruments Act 1881. Reference in this regard may be made to a decision rendered by Hon'ble the Supreme Court in case of Gurcharan Singh and another v. Allied Motors Ltd. and another, 2006(2) R.,C.R.(Criminal) 29. Relevant para-5 of the said judgment is reproduced as under:

"5. The complaints were filed before the award was made. It is also not in issue that objections to the award are pending. It is elementary that the civil proceedings or arbitration proceedings for recovery and the criminal proceedings under section 138 of the Negotiable Instruments Act are based on independent cause of action. The making of the award may be a defence to such a complaint but to what extent the defence would be valid, shall depend upon the facts and circumstances of each case. Mere making of the award cannot be a ground to stall or stay the proceedings initiated under section 138 of the Negotiable Instruments Act. That being the only ground to stay the criminal proceedings of complaint cases, we are unable to sustain the impugned order of the High Court. We are, however, expressing no opinion, one way or the other, either on the merits of complaints or that of defence that may be taken or available to the accused in accordance with law."

7. As regards the second submission raised on behalf of the petitioner about there being no resolution passed in favour of the Branch Manager, authorizing him to file complaint under Section 138 of the Act, at the instance of respondent-B