IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Petition No. 76 of 2005 1. M/s Aabhas Spinners Pvt. Ltd. C-90, Phase V, Focul Point, Ludhiana, Punjab through its Managing Director, Padam Kumar Dalmia 2. Padam Kumar Dalmia S/o Sri Mahavir Prasad Dalmia Managing Director M/s Aabhas Pvt. Ltd. C –90, Phase V, Focul Point, Ludhiana, Punjab. ...…………. Petitioner [ Versus 1. State of Uttaranchal 2. M/s Pashupati Acrylon Ltd. Kashipur Road, Thakurdwara, Distt. Moradabad. U.P. through Special Power of Attorney holder Ramjee Singh Yadav S/o N.S. Yadav, Village Hariharpur, P.O. Mohamadabad, District Ghazipur, U.P. at present C –18, New Avas Vikas, Kashipur, District Udham Singh Nagar. ...…………. Respondents Mr. Mohd. Azim, Advocate for the petitioners. Mr. Devesh Bishnoi, Advocate for respondent No. 2 (complainant). Mr. Tanuj Semwal, Addl. Govt. Advocate for the State. Hon. Prafulla C. Pant, J. By means of this petition, moved under Section 482 of the Code of Criminal Procedure, 1973, the petitioner has sought quashing of the summoning order dated 14th June 2004, passed by Judicial Magistrate, 2 Kashipur, in Criminal Case No. 592 of 2004, relating to offence under Section 138 of the Negotiable Instrument Act, against the petitioners. 2) Heard learned counsel for the parties. 3) From the perusal of copy of the criminal complaint which is Annexure –1 to the petition, it appears that respondent No. 2 filed a criminal complaint before the trial court (Judicial Magistrate, Kashipur) with the allegations that the complainant is manufacturer of the acrylic fiber. The petitioners’ company is situated in Ludhiana, Punjab, and for their unit, petitioner company purchased acrylic fiber from the complainant on credit basis. As per the complaint case some Rs. 80,05,708.10 were outstanding towards the complainant. Para 4 of the complaint shows that a cheque No. 014926 dated 24.02.2004, for an amount of Rs. 15,00,000/- was issued by the petitioner No. 2 (accused) on behalf of petitioner No. 1. Said cheque when presented in Allahabad Bank, Branch Kashipur, got bounced as the accused (petitioners) had directed their bankers not to honour the cheque. Complainant’s case is that, thereafter, he issued a notice to the petitioners, who failed to make the payment of the amount and, hence, the criminal complaint. 4) Learned counsel for the petitioners argued that the amount alleged in the criminal complaint is not 3 recoverable as the goods supplied by the complainant were of a poor quality. It is further argued that it is not a case of insufficient funds with the bankers, but a case of stop payment. 5) This Court is not expected to examine the disputed facts under Section 482 of the Code of Criminal Procedure, 1973. Only those criminal proceedings can be quashed under said Section by this Court, where either the ingredients of the offence are not made out (even after accepting the allegations of the complaint on its face value), or where there is abuse of process of law, or where there is apparent jurisdictional error. Whether, the amount sought to be recovered was correct or not, or whether the quality of goods supplied by the complainant was poor, or not, are the questions of fact which can be examined by the trial court, where the evidence would be adduced. Whether, the stop payment direction was issued to the bankers to cheat the complainant, or not, is also a question of fact, which can be seen by the court having jurisdiction to try the suit. It is not a case of the petitioners (accused) that the court concerned has no jurisdiction to try the criminal complaint. From the perusal of the allegations contained in the complaint (Annexure –1 to the petition) it cannot be said that the ingredients of the offence are not made out, nor can it be said that the trial court has not applied its mind before passing the impugned summoning order (copy of the summoning 4 order is annexed as Annexure –2 to the petition) which shows that before passing said order, the Magistrate has recorded the statement of the complainant under Section 200 of Cr.P.C. and also perused the documentary evidence, for example original cheque, copy of the notice and dishonour slip. 6) Having gone through the papers on record and after considering the submissions of learned counsel for the parties, this Court does not find any sufficient reason to interfere with the proceedings sought to be quashed by this Court. Therefore, the petition under Section 482 of the Code of Criminal Procedure, is dismissed with the observation that the plea of innocence raised by the petitioners before this Court, can be taken before the trial court. Interim stay order dated 17.02.2005 is hereby vacated. (Urgency Application No. 2250 of 2008 as well as Urgency Application No. 2352 of 2008 both stands disposed of). (Prafulla C. Pant, J.) Dt. October 20, 2008. H.Negi