1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Smt. Aruna Vs. State of Rajasthan & Ors. S.B.CRIMINAL MISC. PETITION NO.1110/2006 DATE OF ORDER :: April 09, 2008 PRESENT HON'BLE MR.JUSTICE H.R.PANWAR Mr.K.K.Shah, for the petitioner. Mr.N.A.Rajpurohit, for respondent No.2. Mr.Pawan Sharma, for respondent no.3. BY THE COURT: This criminal misc. petition under section 482 Cr.P.C. is directed against the order dt.11.8.2006 passed by Additional Chief Judicial Magistrate (Communal Riots), Pali (for short `the trial court' hereinafter) whereby the trial court took the cognizance of the offence under section 138 of the Negotiable Instruments Act, 1881 (for short `the Act' hereinafter) and issued the process against the petitioner. I have heard learned counsel for the parties. Carefully gone through the material available on record including the 2 record of the trial court. It is contended by learned counsel for the petitioner that certain cheques bearing No.32424 and 32425 of Marwar Gramin Bank, Pali were lost. The cheque book was issued in favour of the petitioner, who is proprietor of the firm and it is alleged that the cheques were duly signed bearing the seal of the firm. The bank was also intimated regarding the loss of the cheques. However, respondent No.2, complainant happened to get the lost cheque and filled the amount therein as also the name of payee and submitted to the Bank for encashment, which the Bank returned unpaid on the ground that there is no sufficient fund to the account of the petitioner. Thereafter, a notice for demand of cheque amount was served upon the petitioner, however, the petitioner failed to make payment of the cheques amount, therefore, a complaint has been filed, on which the trial court took the cognizance for the offence noticed above. According to the learned counsel for the petitioner, the order taking cognizance is bad in view of the fact that the loss of the cheques was intimated to the bank and was published in the newspaper. Learned counsel appearing for the complainant- respondent No.2 submits that these questions have to be considered before the trial court at the trial of the case when the 3 parties adduce the evidence. Learned counsel further submits that there had been number of transactions between the petitioner and respondent No.2, complainant and the petitioner had issued number of cheques bearing No. 032402 dt. 19.5.2005, 032416 dt. 2.6.2005, 032422 dt. 14.6.2005, 032423 dt. 15.6.2005 and 033165 dt. 6.7.2005 as also placed on record a copy of the account books, where the petitioner had transaction with the complainant and there is an affidavit of Mohan Lal, who is said to be the Manager of the petitioner firm that those cheques were issued by the petitioner for discharging of liability. Learned counsel has relied on a decision of Hon'ble Supreme Court in S.V.Muzumdar and Ors. Vs. Gujarat State Fertilizer Co. Ltd. and Anr., (2005) 4 SCC 173, wherein the Apex Court held that the High Court was justified in not accepting the defence plea that there was neither any material to show that the accused at the time of the alleged offence were in charge of and or responsible to the company for the conduct of the business. This controversy is to be adjudicated at the trial. In a recent decision of Hon'ble Supreme Court, while considering the scope of the interference under section 482 Cr.P.C. has curled out certain principles and also held that disputed question of fact has to be decided at the trial of the 4 case when the parties aduce the evidence. On careful perusal of the complaint and the documents annexed therewith including a copy of account books as also the notice issued through counsel demanding cheques amount and the affidavit of respondent No.2, complainant, in my view, prima facie the requirement of section 138 of the Act is made out construing the offence under section 138 of the Act. So far as plea of defence is concerned, it is open for the petitioner to raise the plea of defence at appropriate stage of the trial of the case. In this view of the matter, I do not find any error in the order impugned warranting interference. The petition is, therefore, dismissed. However, it will be open for the petitioner to raise such plea of defence at the appropriate stage in the trial of the case. Ad interim stay order dt. 1.9.2006 is vacated. Record of the trial court be returned forthwith. (H.R.PANWAR),J. m.asif/-