IMPORTANT POINT
The court upheld the validity of proceedings under Section 138 of the Negotiable Instruments Act, emphasizing the necessity for expeditious trial and the inappropriateness of examining factual aspects under Section 482 Cr.P.C.

JUDGMENT :

RAKESH THAPLIYAL, J.

1. Present C482 application has been filed, challenging the proceedings of Criminal Complaint Case No. 1769 of 2023, Kiran Chandra Joshi vs. Ravi Kanyal, which has been initiated pursuant to the complaint filed by respondent no. 2 under Section 138 of the Negotiable Instruments Act.

2. Brief facts, of the case, are that a cheque was issued by the present applicant on 20.02.2020 to the respondent/complainant for an amount of Rs. 6.50 lakhs which was presented for encashment in the Bank on 15.04.2020, however it was returned back with an endorsement “funds insufficient” and again the same was presented for encashment in the Bank on 21.05.2020, which was returned back with an endorsement that the valid period of the cheque has been expired. Thereafter, the respondent/complainant sent a notice of demand on 18.06.2020 which was replied by the applicant on 29.06.2020, and, thereafter again a notice of demand was sent on 29.08.2020 which was also replied by the applicant on 14.09.2020. When the amount was not paid to the respondent/complainant then he filed complaint under section 138 of the Negotiable Instruments Act on 28.09.2020, in which the Trial Court initiated the process and summoned the applicant by order dated 11.04.2023.

3. Learned counsel for the applicant submits that the proceeding initiated pursuant to the complaint filed by the respondent/complainant under Section 138 of the Negotiable Instruments Act is an abuse of process of law. Apart from this he submits that the complainant did not disclose the fact in his complaint for what purposes the cheque was given and submits that there is no legally enforceable debt, hence, the proceedings be quashed.

4. In response to this, Mr. Barthwal, learned counsel for the complainant submits that earlier notice was given in general and was not confined to the cheque in question and for cheque in question, the notice was sent on 29.08.2020. Apart from this, he submits that on perusal of the complaint it reveals that the same is based upon the subsequent notice dated 29.08.2020 but this notice has deliberately not enclosed in the petition. Apart from this, he submits that in fact the respondent/ complainant was cheated by the present applicant and he is involved in several cases of such nature and he is indulge in grabbing the lands on through away prices of various people and farmers. The assertion to this aspect he has pleaded in Para 15 of his counter affidavit.

5. Mr. Barthwal, learned counsel for the complainant placed on record the copy of the notice dated 29.08.2020, and I perused the same and it appears from this notice that this notice is confined to the cheque in question. He further submits that the applicant deliberately has not enclosed the notice date 29.08.2020 and make an attempt to mislead the Court by giving reference of the earlier notice dated 18.06.2020, with intention to give impression to this Court that the subsequent notice is a second notice for the cheque in question.

6. I perused the order sheet and it reflects that the proceedings were never been stayed by this Court and only this much liberty was given to the applicant by order dated 07.06.2023 that he may seek an adjournment before the Trial Court which was extended on 01.08.2023. Thus, it is clear that the proceedings were never been stayed by this Court, however, this is undisputed fact that the cheque was issued by the present applicant and the same was dishonoured, and, subsequently the complaint was filed and the Trial Court after gone through the contents of the complaint and other materials initiated the process and summoned the present applicant.

7. Admittedly, the complaint was filed on 08.09.2020 in which the process have been initiated and the applicant was summoned by the Judicial Magistrate by an order dated 11.04.2023. More than 1 year has been passed and despite the fact that proceedings were never been stayed, the proceeding is still pending.

8. It is very strange