Proper procedure for taking cognizance of offences under Section 420 I.P.C. and the applicability of Section 138 N.I. Act.

Hon’ble Het Singh Yadav, J. : The applicant has preferred this application? invoking inherent jurisdiction? of this Court under Section? 482 Criminal Procedure Code (in short the Code) with a prayer to quash the Complaint Case No. 1008 of 2008 (Sant Kumar Mittal Vs. Ajay Tau) under Section 420 I.P.C. pending in the court of Judicial Magistrate-I, Agra and also summoning order dated 23.6.2008 passed by Judicial Magistrate-I, Agra against the applicant.

2. To appreciate the controversy involved in this case the facts in brief are that the Opposite Party No. 2 filed complaint against the applicant alleging therein that the applicant drew a cheque of Rs. 25 lacs on his account maintained by him with Canara Bank for payment of the amount being part of the sale consideration relating to sale-deed executed by the O.P. No. 2 in favour of the applicant and two other persons. The O.P. No. 2 presented the cheque to the bank of the applicant through his bank within a period of its validity. However, it was returned unpaid by the bank of the applicant for the reason?? ‘drawer’s signatures differs from specimen given’. The O.P. No. 2 served? notice upon the applicant as per provisions of Section 138 Negotiable Instrument Act (in short N.I. Act) of which the applicant gave incorrect reply and further failed to make the payment of the amount of the? dis-honoured cheque to the O.P. No. 2. The learned Magistrate permitted the O.P. No. 2 to file his affidavit instead of recording his statement under Section 200 of the Code and after having considered the affidavit of the O.P. No. 2 and the other material and documents produced by him under Section 202 of the Code, has taken cognizance? under Section 420 I.P.C. against the applicant and issued process under Section 204 of the Code. The applicant has prayed to quash the said order of issuing process against him by the court below by moving this application under Section 482 of the Code.

3. Heard? learned counsel for the parties and perused the record.?

4. It is contended by the learned counsel for the applicant that the Opposite Party No. 2? transferred and conveyed his landed property in favour of applicant, Lalit Raparia and Mahesh Chandra for a valuable consideration of Rs. 10 lacs vide registered sale deed 17.8.2007. The O.P. No. 2 executed? the sale deed after having received the entire sale consideration as obvious from the perusal of the sale deed itself. Thus, there was no occasion to issue the cheque in question on 17.11.2007 after three months of the execution of the sale deed in favour of O.P. No. 2 towards the part payment of sale consideration. The applicant in his reply to the notice issued by the O.P. No. 2 has clearly stated that he never issued the cheque in question in his favour as a part payment of the sale consideration and further it is also clearly disclosed that the entire sale consideration was paid at the time of execution and registration of the sale deed.

5. The next limb of the arguments of the learned counsel for the applicant is that to constitute an offence under Section 138 N.I. Act following conditions are required to be fulfilled.

(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;

(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;

(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier,

(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;

(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice