The admissibility of evidence and the determination of issues should be addressed during trial, and inherent jurisdiction under Section 482 CrPC should not be invoked without grounds.

Om Prakash-VII,J.

The present application has been filed by the applicant with the prayer to quash the entire proceedings of complaint case no. 202 of 2010 under Section 138 Negotiable Instrument Act, P.S. Gorakhnath, District - Gorakhpur pending before the Additional Chief Judicial Magistrate, Room No.1, Gorakhpur. Further prayer has been made to stay the further proceeding of the aforesaid case.

2. Heard Shri Om Prakash Pandey, learned counsel for the applicant, Shri S.K. Tiwari, learned counsel for the opposite party no.2 and the learned AGA appearing for the State and perused the record.

3. It was submitted by the learned counsel for the applicant that six blank cheques were given in lieu of fulfilling the condition for obtaining/starting sub-dealership of the firm Ruby Trading Company at Gorakhpur. Since the said cheques were not issued in discharge of any legally enforceable liability or debt, the proceedings under Section 138 Negotiable Instrument Act cannot go-on against the applicant. It was further submitted that since notice sent to the applicant was not served, the complaint on this score also cannot go-on against the applicant. It was further submitted that the concerned court while passing the impugned order has placed reliance on the photocopies of the document, which is illegal. Referring to the provisions of Section 65 of the Evidence act, it was submitted that photocopies cannot be taken as piece of evidence in any matter. It was next submitted that notice, which was not served personally upon the applicant, will not be deemed to be legal notice, hence essential ingredients to initiate proceeding under Section 138 of the aforesaid Act were not available. In support of his submissions, learned counsel for the applicant placed reliance on the following decisions of this Court and Delhi High Court:

1. Rajiv Kumar vs. State of U.P., Criminal Misc. Application No. 3463 of 1991, decided on 7.3.1991.

2. H.D.F.C. Bank Ltd. vs. Amit Kumar Singh, 2009 LawSuit (Del) 848.

4. On the other hand, learned counsel for the opposite party no.2 and the learned AGA submitted that the applicant appeared before the court concerned and has obtained bail. Further, all the defences/pleas taken in this application may be taken/raised during the course of trial. Registered notice was sent at correct address. It was returned unserved then it shall be deemed that service of notice on the applicant was sufficient. It was further submitted that on this score proceeding of the aforesaid complaint cannot be quashed. In support of the submissions, learned counsel for opposite party no.2 and the learned AGA placed reliance on the following decisions of the Apex Court:

1. V. Raja Kumari vs. R. Subbarama Naidu, 2004 LawSuit (SC) 1317.

2. Indo Automobiles vs. Jai Durga Enterprises, 2008 LawSuit (SC) 2244.

3. K. Bhaskaran vs. Sankaran Vaidhyan Balan, 1999 LawSuit (SC) 1056.

5. I have considered the rival submissions made by the learned counsel for the parties and gone through the entire record.

6. As regards the submission regarding issuance of six blank cheques issued towards fulfilling the condition to start/obtain the sub-dealership is concerned, the applicant has not denied the fact that he never issued any cheque. Signature on the cheques in question were also not denied. For adjudicating/deciding the question as to whether the cheques in question were issued as pre-condition for starting the business or were issued in lieu of discharge of any liability would require leading of evidence, which cannot be done in this forum and the same will be decided after leading of evidence before the court concerned at appropriate sage. Hence, the proceeding of the complaint case on this score cannot be quashed.

7. As far as service of notice upon applicant is concerned, notice was issued as required under the Negotiable Instrument Act, which was returned back. Thus, it cannot be said that no legal notice was sent by the opposite party no.2. Notice is said to