IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 949 Of 2009 Krishna Jadli …………..Petitioner Versus State of Uttarakhand & Another ………….Respondents Mr. Tapan Singh, learned counsel for the petitioner. Mr. Nandan Arya, learned A.G.A. for respondent no. 1 . Dated: December 10th , 2009 Hon’ble Alok Singh, J. Heard Sri Tapan Singh, learned counsel for the petitioner and Sri Nandan Arya, learned A.G.A. for the respondent no.1. By way of present petition under Section 482 Cr.P.C. petitioner is assailing summoning order dated 21.7.2009 passed by Addl.Chief Judicial Magistrate, Kotdwar, Pauri Garhwal ,whereby learned Magistrate summoned the petitioner/accused under Section 138 of Negotiable Instrument Act . Mr. Tapan Singh argued that cheque in question was lost and cheque was never given to the complainant against any liability or debt. He further stated that provision of Section 138 of Negotiable Instrument Act is not attracted if case is of lost cheque. It is true that provision of Section 138 Negotiable Instrument Act can be invoked when cheque was dishonored on the ground of insufficient fund and not on other grounds as held by Apex Court in the matter of Raj Kumar Khurana Vs. State(NCT of Delhi) and another, reported in 2009(2) S.C.C.(criminal) case 936. The Apex Court in paragraph no.11 and 12 has observed as under: “Section 138 of the Act moreover provides for a penal provision. A penal provision created by reason of a legal fiction must receive strict construction.(See R. Kalyani Vs. Janak C. Mehta and DCM Financial Services Ltd. Vs. J.N.Sareen) Such a penal provision, enacted in terms of the legal fiction drawn would be attracted when a cheque is returned by the bank unpaid. Such non- payment may either be: (i) because of the amount of money standing to the credit of that account is insufficient to honour the cheque, or (ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank. Before a proceeding thereunder is initiated, all the legal requirements therefore must be complied with. The court must be satisfied that all the ingredients of commission of an offence under the said provision have been complied with.” In the present case in paragraph 3 of the complaint, it has been stated by the complainant that cheque no. 583151 was dishonored on the ground of insufficient fund. Cheque was not returned by the Bank on the ground of stop payment/lost cheque /account closed. Whether cheque was lost or petitioner/accused has any liability or debt to pay, is a question of fact ,which can be decided by the trial court after taking evidence on the issues involved in the case. This court while exercising power under Section 482 Cr.P.C. is not supposed to enter into the question of fact or appreciation of evidence nor this court can appreciate defence, which can be taken by the petitioner before the trial court. In view of the above, I find no ground to interfere with the summoning order dated 21.7.2009 passed by the learned Addl.Chief Judicial Magistrate Kotdwar, Pauri Garhwal. Petition is dismissed summarily. (Alok Singh, J.) 10.12.2009 Nishant