IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISC. APPLICATION NO.406 OF 2006 (U/s 482 of Cr.P.C.) Harbir Singh …………Applicant Versus State of Uttarakhand and another …………Respondents Dated: July 22, 2010 Mr. Vinod Sharma, Advocate for the applicant Mr. Amit Bhatt, Addl. GA for the State/respondent no.1 Mr. A.K. Bisht, Advocate for respondent no.2 HON. DHARAM VEER, J. By means of this petition, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner/applicant has sought quashing of the criminal proceedings of Complaint Case No.688 of 2005, Rampal Singh v. Harbir Singh, under Sections 138 of The Negotiable Instruments Act, 1881 (for short, the Act) and 420 of The Indian Penal Code, 1860 (for short, IPC). Heard learned counsel for the parties and perused the entire material available on file. Brief facts of the case are that Chaudhary Rampal Singh (respondent no.2) filed a complaint against the applicant in the court of Special Judicial Magistrate, Rishikesh, Dehradun, stating therein that the applicant and the complainant were well known to each other. In July 2003, the applicant asked for Rs.6.00 Lacs from respondent no.2 for purchasing truck and the respondent no.2, after making arrangements for the same, gave the aforesaid amount to the applicant on 20.7.2003 on credit basis. It is alleged that upto two years the applicant tried to linger on 2 his payment on one pretext or other. Thereafter, on 20.7.2005, the applicant issued a cheque bearing no.459144 dated 20.8.2005, payable at Punjab and Sindh Bank, Branch Shyampur in favour of the respondent no.2. But when the complainant presented the said cheque in the bank, the same was dishonoured and was returned to him by the bank on 22.8.2005 with the endorsement “account closed”. Thereafter the complainant sent a registered notice through his counsel to the applicant on 30.8.2005, which was served on the applicant on 5.9.2005. But even after service of the notice, the applicant did not pay the money to the complainant. With the same averments, respondent no.2 Chaudhary Rampal Singh filed a complaint against the applicant in the court of Special Judicial Magistrate, Rishikesh, which was registered as Complaint Case No.688 of 2005 under Section 138 of the Act and Sect.420 of IPC. The complainant in support of his case got himself examined u/s 200 Cr.P.C. and also filed certain documents. After hearing learned counsel for the complainant and perusing the entire material available, learned Special Judicial Magistrate, Rishikesh vide his order dated 5.11.2005, summoned the applicant under the aforesaid sections. Feeling aggrieved by the said order dated 5.11.2005 and the criminal proceedings initiated against him, the applicant has preferred the present C482 application before this Court. Learned counsel for the applicant argued that the summoning order dated 5.11.2005 passed by Special Judicial Magistrate, Rishikesh under Section 420 of IPC is not justified and correct. He further argued that if the allegations of the complaint are taken out to be true, at the most, prima facie the offence u/s 138 of the Act is made out against the applicant. I find force in the argument put forth by learned counsel for the applicant. From a perusal of the contents of the complaint and the statement of the complainant recorded u/s 200 Cr.P.C., I find that the 3 ingredients of Section 420 of IPC are not attracted in this case as no allegations of cheating have been made against the present applicant and whatever the allegations are there, they are regarding dishonour of cheque. As such, I am of the view that as against the applicant, since the offence punishable u/s 420 of IPC is not made out, therefore, the criminal proceedings with respect to the said offence are liable to be quashed. So far as the offence punishable u/s 138 of the Act is concerned, it transpires that disputed questions of facts are involved in the instance case. It is well settled that while exercising jurisdiction under section 482 of the Cr.P.C., this Court would not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial court, which will decide the case after recording the evidence adduced before it. However, if the allegations made in the complaint are taken at their face value and accepted in their entirety, I am of the view that the applicant has rightly been summoned by the trial court under Section 138 of the Act. For the reasons recorded above, the C482 application is partly allowed with the observation that the proceedings against the applicant u/s 420 of IPC are quashed. However, so far as the offence u/s 138 of the Act is concerned, the trial court shall proceed against the applicant as per law. Interim order dated 12.6.2006 stands vacated. (Dharam Veer, J.) 22.07.2010 RG