JUDGMENT :

1. Heard the learned counsel for the applicant Sri Amit Daga and the learned counsel Sri Vikrant Rana appearing on behalf of the respondent no.2 and the learned A.G.A. for the State.

2. The instant petition has been filed with the prayer to quash the entire proceedings of criminal complaint Case No. 173/9 of 2007, under Section 138 of Negotiable Instrument Act, police station Kotwali, district Muzaffar Nagar whereby the applicant has been summoned to face trial vide order dated 2.6.2007 passed by the Chief Judicial Magistrate, Muzaffar Nagar.

3. The prosecution case in a short conspectus is that the opposite party no. 2 has filed a complaint against the applicant on 26.4.2007, under Section 138 of Negotiable Instrument Act (hereinafter referred to as the Act). The respondent no. 2 came in contact with the applicant and entered into partnership on 11.2.2000 in Muzaffar Nagar and executed a joint venture agreement on 17.4.2000. The partnership business was in the name and style of "Priyanka Aryan Constructions". In 2002 due to ill intention the applicant started cheating to defraud the opposite party no. 2 and hence the complainant filed a case No. 6 of 2003 before the court of Civil Judge (Senior Division), Thane, Mumbai. After filing of the suit the applicant persuaded the complainant to enter into outside the court settlement whereby the applicant agreed to pay Rs. 45,00,000/-in terms of compromise. The applicant issued two cheques one of Rs. 10,000,00/-dated 29.1.2007 bearing cheque no. 299853 and another cheque of Rs. 35,000,00/-dated 6.2.2007 bearing cheque no. 29960 of Abhuday Cooperative Bank Ltd. Branch Vashi, Navi Mumbai and was assuring that it will be encashed. When the opposite party no. 2 deposited the aforesaid cheque of Rs 10,000,00/-dated 29.1.2007 in his local account at Canara Bank, Roorki Road, Muzaffar Nagar on 3.1.2007, the said cheque was returned on 9.2.2007 by the Bank with the endorsement of "insufficient of fund", it was returned without any payment along with bank memo of Canara Bank dated 14.2.2007, which was received by the opposite party no.2 on 26.2.2007.

4. On coming to know about the dishonour of cheque the complainant sent a registered notice with A.D. through his counsel on 9.3.2007, which was received by the applicant the receipt whereof was received by the opposite party no. 2. Despite service of notice to the applicant when neither the amount of money mentioned in the cheque was returned nor any reply given on receipt of the notice, hence the cause of action arose to file a complaint against the applicant under Section 138 of Negotiable Instrument Act. While filing the complaint the photo state of the cheque dated 29.1.2007 in respect of Rs. 10,00,000/-, photo copy of the return memo of the Bank, Vashi Branch, registered notice to the applicant dated 9.3.2007, photo state copy of the registered receipt dated 9.3.2007 and other papers were filed. On the basis of which a case was registered against the applicant under Section 138 of Negotiable Instrument Act as case No. 173/9 of 2007. The statement of the complainant/opposite party no.2 under Section 200 Cr.P.C. was recorded on the same day and the witness, namely, Rakesh Kumar Arora under Section 202 Cr.P.C. on 5.5.2009 was recorded. After going through the material on record both oral and documentary the learned Magistrate proceeded to pass the order on 2.6.2007 that prima facie offence is made out against the applicant under Section 138 of Negotiable Instrument Act and summoned the applicant to face the trial.

5. Hence this petition.

6. The learned counsel for the applicant has submitted that the initiation of the present proceeding on the basis of the complaint filed by the opposite party no.2 is an abuse of the process of law as there is no strict compliance of provision of Section 138 of Negotiable Instrument Act. It is alleged that the complainant had sent legal notice through his counsel to the accused/applicant on 9.3.2007 but n