IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Delay Condonation Application No.1176 of 2010 In Criminal Misc. Application No.519 of 2005 (U/s 482 of Cr.P.C.) Vinod Gupta …………Applicant Versus State of Uttarakhand and another …………Respondents Dated: October 22, 2010 HON. DHARAM VEER, J. Delay Condonation Application No.1176 of 2010 For the reasons stated, the delay condonation application is allowed. Delay in filing the rejoinder affidavit is condoned. Rejoinder affidavit is taken on record. C482 No.519 of 2005 Heard Mohd. Azim, Advocate holding brief of Mr. Sandeep Tandon, Advocate for the applicant, Mr. M.A. Khan, Brief Holder for the State and Mr. Siddhartha Sah, Advocate for respondent no.2. By means of this petition, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short Cr.P.C.), the applicant has sought quashing of order dated 19.4.2004 passed by Special Judicial Magistrate Ist, Dehradun in Complaint Case No.10 of 2004, Vijay Kumar Malhotra v. Vinod Gupta, relating to offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short, the Act). Brief facts of the case are that respondent no.2 Vijay Kumar Malhotra filed a complaint in the court of Special Judicial Magistrate Ist, Dehradun against the applicant on 2 21.1.2004 alleging that the complainant and applicant were having friendly relationship. In November 2003, the applicant took cash of ` 50,000/- from the complainant on credit basis and for the repayment of above money, the applicant handed over two postdated cheques (No.DRD/S.No.0350337 dated 2.12.2003 of ` 30,000/- and No.DRD/S.No.0350336 dated 15.12.2003 of ` 35,000/-) to the respondent no.2 It is alleged that when the cheque no.DRD/S.No.0350337 dated 2.12.2003 of ` 30,000/- was deposited in the bank by the complainant the same got dishonoured with the endorsement “payment stopped by drawer”. Thereafter the complainant, through his counsel, sent a notice through registered post to the applicant but the complainant received back the undelivered registry. Thereafter, the complainant filed the present complaint in the court. In support of the complaint, the complainant filed cheque in dispute, bank memo, copy of notice and receipt of registry and also got himself examined u/s 200 Cr.P.C. After hearing learned counsel for the complainant and perusing the material available, vide order dated 19.4.2004, learned Special Judicial Magistrate, Dehradun, took the cognizance of the offence u/s 138 of the act and also summoned the applicant. Feeling aggrieved, the applicant has preferred this petition u/s 482 Cr.P.C. before this Court. Learned counsel for the applicant has submitted that the demand notice was not served upon the applicant. It is contended that the notice is a mandatory condition under Section 138 of N.I. Act but the same is not fulfilled in the present case and as such the entire proceedings on the basis of above complaint are not justified and are liable to be quashed. I do not find force in the argument put forth by learned counsel for the applicant. A counter affidavit has been filed by respondent no.2 in which the statement of applicant recorded in the trial court has been annexed where he has admitted that he had received the notice and had also given reply of the same, which clearly goes to show that the notice was served on the applicant. 3 From the above discussions, it reveals that the disputed questions of facts are involved in the instance case. The factual dispute cannot be decided without recording the evidence of the parties that can only be decided by the trial court. 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, from a perusal of the contents of the complaint and the statement of applicant recorded in the trial court as well as on perusing the counter affidavit of the complainant, I am of the view that prima facie a case under section 138 of N.I. Act is made out against the applicant. I am of the view that in the present case there is neither any miscarriage of justice nor any abuse of process of court. For the reasons recorded above, there is no force in the application. The C482 application is devoid of merit and is hereby dismissed. Interim order dated 23.8.2005 stands vacated. (Dharam Veer, J.) 22.10.2010 RG