IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER S.B. CRIMINAL MISC. PETITION NO.324/2005 Raisulla Vs. Chhitar Lal & Anr. 28.01.2008. HON'BLE MR;. JUISTICE DALIP SINGH Shri S.K. Jain, for the petitioner. Shri Arun Sharma, Public Prosecutor. Heard learned counsel for the petitioner. The learned Magistrate vide its order dated 11.6.2004 took cognizance against the petitioner for the offence under Section 138 of the N.I. Act. The submission of the learned counsel for the petitioner is that the petitioner had in fact repaid the amount of Rs.50,000/- in cash but the complainant failed to return the cheque which was given by the petitioner and in the said cheque the complainant has fraudulently altered the date from 15.4.2001 to 15.4.2004.The petitioner thereafter filed a complaint. On the complainant which was sent to the Police Station, Nayapura, Kota an FIR No.523/2004 was registered against the complainant. It is submitted that in the said FIR the complainant has been challaned by the police after investigation. On the basis of the above the petitioner has prayed that the complaint be quashed. I have heard the learned counsel for the petitioner. Assuming that all the facts are correct, the court is yet to give a finding against the complainant and what has been stated herein is a defence which may be set up by the accused petitioner in the case filed against him under Section 138 of N.I. Act. In view of the above, the petitioner is at liberty to raise the aforesaid defence by leading evidence in the trial and it is expected that the learned trial court shall decide the matter after taking into consideration all the facts and circumstances. The defence cannot be taken into consideration while taking cognizance of the complainant as cognizance is required to be taken on the basis of the submission made in the complaint and the material placed before the court along with it. This criminal misc. petition under Section 482 Cr.P.C. is disposed of with the above observation. The stay petition also strands disposed of. (DALIP SINGH),J. Ramchandrkhatri,PS