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HARKESH MANUJA
Rakesh – Appellant
Versus
Sonepat District Primary Co-operative Agricultural – Respondent
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
The central legal point established in the judgment is the requirement of a valid commercial relationship and a valid mercantile contract for enforcing the provisions of Section 138 of the Negotiable....
Dishonour of a cheque due to insufficient funds constitutes an offence under Section 138 of the N.I. Act, regardless of claims of theft, unless the evidence at trial proves otherwise.
Dishonour of a cheque under Section 138 is actionable regardless of claims of stop payment or misplaced cheque, with legal presumptions favoring existence of debt or liability.
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