JUDGMENT

Mrs. Manju Rani Chauhan, J.

By means of instant application the applicant has approached this Court challenging the summoning order dated 28.10.2020 passed in Complaint Case No. 1032/09 of 2020, Kapil v. Vedpal under section 138 of the Negotiable Instruments Act, 1881, Police Station - Shamli, District Kairana, by Chief Judicial Magistrate, Shamli at Kairana.

2. Brief facts of the case are; a complaint had been filed against the applicant alleging that the applicant and opposite party no. 2 were known and helped each other by means of money in case of need. Owing to the above friendship, feeling faith in applicant, opposite party no. 2 lent an amount of Rs. 2,60,000/- (Rupees Two Lakh Sixty Thousand] in the month of June, 2019 with the assurance extended by the applicant that said amount will be returned to him within six months. After the passage of said period, when the opposite party no. 2 requested the applicant to return the amount, expressing inability for immediate return in cash, he gave a cheque bearing no. 880624 dated 30.12.2019 of Rs. 2,60,000/-. The opposite party no. 2 presented the said cheque in the Bank for encashment on 04.01.2020, but the same was return with the remark "insufficient fund", where after the opposite party no. 2 communicated the said fact to the applicant and on assurance given by the applicant, the opposite party no. 2 presented the aforesaid cheque for encashment in the Bank which was again returned on 23.01.2020 with the remark "insufficient fund". After giving a legal notice through registered post on 31.01.2020, when neither any reply was submitted nor money was paid, the present compliant has been filed, wherein the applicant has been summoned, hence the instant application has been filed by him under Section 482 Cr.P.C.

3. Learned counsel for the applicant submits that the aforesaid cheque was stolen by someone and has been obtained by the applicant which is being misused by him. He further submits that though the applicant does not deny the signatures on the cheque but the amount is not filled by him, therefore, the complaint is not maintainable hence is liable to be quashed.

4. Per contra, learned A.G.A. submits that no first information report was ever lodged by the applicant in respect of missing or stolen of cheque, thus the submission made by learned counsel for the applicant cannot be believed and the complaint is maintainable.

5. I have heard Sri Krishna Kumar, learned counsel for the applicant, Sri Akhilesh Srivastava, learned A.G.A. for the State, and perused the record.

6. The applicant nowhere disputes the signatures on the cheque and as regards the submission with respect to filling up of amount by some other person, is concerned, it is the disputed question of fact.

7. It is apposite to quote the provisions of Section 138 of the Act, which read as under:

"138. Dishonor of cheque for insufficiency, etc., of funds in the accounts:- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:

PROVIDED that nothing contained in this section shall apply unless-

(a) the 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.

(b) the payee or the holder in due course of the cheque, as