IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Misc. Application (C-482) No. 437 of 2004 1. Balram Singh Verma S/o Shri Mamraj Singh Verma 2. Smt. Durgawati W/o Shri Mamraj Singh Both R/o Village Nathanpur, Jogiwala, Police Station Doiwala, Dehradun ………….. Petitioners Versus 1. State of Uttaranchal /State of Uttarakhand 2. J.F.C. Finance (India) Ltd., 29, Rajpur Road, Anekant Palace, Police Station Kotwali Dehradun Through its Power of Attorney Mr. Sant Ram Sharma S/o Shri Munshi Ram, R/o 124, Hakikat Rai Nagar, Police Station Kotwali, Distt. Dehradun. ………… Respondents Mr. Ramji Srivastava, Advocate for the petitioners. Mr. M.A. Khan, Brief Holder for the respondent No. 1 / State. None present for the complainant / respondent No. 2. Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Section 482 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioners have sought quashing of the proceedings of Criminal Complaint Case No. 22 of 2004; J.F.C. Finance (India) Ltd. Vs. Balram Singh Verma and another, relating to offence punishable under Section 138 of the Negotiable Instruments Act, 1881, pending in the court of II Addl. Civil Judge (Junior Division) / Judicial Magistrate, Dehradun. 2) Heard learned counsel for the parties present and perused the papers on record. 3) Brief facts of the case are that the respondent No. 2 / complainant filed a criminal complaint, copy of which is annexed as Annexure –7 to the petition, in which it was alleged by the complainant / respondent No. 2 that the complainant is a finance company from whom the petitioner No. 1 took loan to purchase a scooter and gave 19 post dated cheques, amounting to Rs. 2,100/- each. It is pleaded by the complainant that when the cheque No. 384420 dated 19.12.2003 was presented before the bankers on 21.12.2003, the same was returned with the endorsement ‘Stop Payment’. On this, the complainant gave necessary notice on 06.01.2004, but the petitioners did not pay the amount. Hence, the complaint was filed. The Magistrate, after recording the statement of the complainant under Section 200 of Cr.P.C. and that of the witness under Section 202 of Cr.P.C., summoned the accused (present petitioners) to face the trial in respect of offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 4) Learned counsel for the petitioners submitted that the petitioner No. 1 after obtaining loan, later opted for a zero per cent interest finance scheme, as advertised by the complainant, copy of which is annexed as Annexure –3 to the petition, and the complainant was required to return the earlier given post dated cheques. It is pleaded that the petitioner No. 1 was not liable to make the payment of the amount regarding which the cheque in question was dishonoured. 5) As far as taking loan by the petitioner No. 1, from the complainant to purchase the scooter is concerned, said fact is an admitted fact. But, as far as question relating opting for a new scheme, and whether full payment had already been made by the petitioners or not are concerned, the same are questions of fact which can be decided by the trial court, after recording the evidence. The extent of factual liability, in the above circumstances, cannot be decided by this Court on the basis of half baked evidence before it. 6) However, as far as petitioner No. 2 Smt. Durgawati is concerned, there is not a single word in the criminal complaint that she took loan or she signed the cheque. In the impugned order dated 03.06.2004, by which the petitioners are summoned, the Magistrate has nowhere mentioned that what was the role of Smt. Durgawati (present petitioner No. 2) in the commission of offence, and why she was summoned. In the circumstances, as against Smt. Durgawati it is an abuse of process of law to summon her, in the present case. 7) Having considered submissions of learned counsel for the petitioners, and after going through the papers on record, without expressing any opinion as to the final merits of the case, this Court does not find it a fit case to interfere with the trial, so far it relates to petitioner No. 1 Balram Singh Verma. Therefore, the petition under Section 482 of Cr.P.C. is liable to be dismissed to that extent. 8) Accordingly, the petition filed by Balram Singh Verma (petitioner No. 1) under Section 482 of Cr.P.C. is dismissed. However, petition filed by Smt. Durgawati is allowed. The proceedings of impugned order dated 03.06.2004, passed by II Addl. Civil Judge (Junior Division) / Judicial Magistrate, Dehradun, in Criminal Complaint Case No. 22 of 2004, J.F.C. Finance (India) Ltd. Vs. Balram Singh and another, relating to offence punishable under Section 138 of the Negotiable Instruments Act, 1881, police station Kotwali Dehradun, are quashed to the extent petitioner No. 2 Smt. Durgawati is summoned. However, the trial may proceed against petitioner No. 1 Balram Singh Verma. The petition under Section 482 of Cr.P.C. stands disposed of, accordingly. Interim order dated 28.10.2004 automatically stands vacated. Registry is directed to inform the court concerned. (Prafulla C. Pant, J.) Dt. June 14, 2010. H. Negi