Crl.M.No. M-32542 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl.M.No. M-32542 of 2011 (O&M) Date of decision : 31.10.2011 ... Nishant Aggarwal ................Petitioner vs. Kailash Kumar Sharma .................Respondent Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. A.K. Jaiswal, Advocate for the petitioner ... K.C. Puri, J. Challenge in this petition under Section 482 Cr.P.C. is the complaint dated 30.8.2010 (Annexure P-11) and order dated 12.5.2011 (Annexure P-16) passed by Additional Sessions Judge, Bhiwani whereby the order dated 5.3.2011 (Annexure P-15) passed by Judicial Magistrate Ist Class, Bhiwani, was set aside. Briefly stated, Kailash Kumar Sharma – complainant filed a complaint under Section 138 and 141 of the Negotiable Instruments Act, 1881 against Nishant Aggarwal accused, now petitioner, with the allegation that accused is Director of M/s Byri Steel Private Limited and his father B.L. Aggarwal is the Managing Director of M/s Mechfeb Engineering Industries Private Limited situated at Crl.M.No. M-32542 of 2011 -2- Meghalaya and Guwahati (Assam). The complainant was associated with both the above mentioned firms. The complainant used to bring business for accused 's firm from many private firms and Government departments. The accused had a verbal agreement with the complainant that he will pay 5% commission in the business brought by him above ` 30 lacs and 50% of the profit in business brought by him below ` 30 lacs from any private or Government department to the accuser's company. The complainant had worked on behalf of accuser's company as an attorney as well. The accused issued a post dated cheque drawn on Standard Charted Bank, Guhwati bearing No. 925504 dated 1.8.2009 for ` 28,62,700/- in favour of the complainant to discharge his legal enforceable liabilities. The complainant presented the abovesaid cheque for collection through its bankers Canara Bank, Bhiwani on 13.8.2009 and the cheque was returned unpaid on 11.9.2009 due to stop payment by the accused. The complainant approached for the payment of above said amount then accused told the complainant to present this cheque again for collection after one month. The complainant presented the cheque again for collection through its bankers Canara Bank, Bhiwani on 15.10.2009 and that cheque was returned unpaid on 14.12.2009. The complainant sent legal notice dated 11.1.2010 to the accused demanding the payment of ` 28, 62,700/- within 15 days of the receipt of notice. The amount was not paid. Hence the complaint. The accused was summoned under Section 138 of the Negotiable Instruments Act, 1881. After his appearance, the accused – petitioner moved an application for staying the further proceedings Crl.M.No. M-32542 of 2011 -3- in the complaint before the Judicial Magistrate Ist Class, pleading various facts including that cheque in question was found missing in the month of January 2006. Fresh information was given to the bank authorities on 4.4.2008. All of a sudden notice dated 11.1.2010 was received by the petitioner accused from the complainant demanding ` 28,62,700/- in respect of cheque in question. It is further pleaded that complaint under Sections 379, 411, 420 IPC has been filed against the present complainant. The Court of Additional Chief Judicial Magistgrate, Guhwati after enquiry under Section 200 Cr.P.C. summoned the complainant and now bailable warrants have been issued against him. Another application for dismissing the complaint and sending the same to the Court having jurisdiction to entertain the complaint was filed. The main stress in that application was that enquiry as contemplated under Section 202 Cr.P.C. has not been conducted. The said application was registered but ultimately learned Judicial Magistrate Ist Class vide order dated 5.3.2011 accepted the application with the observation that Judicial Court at Bhiwani has no jurisdiction and the complaint was returned for presentation before the proper Court having jurisdiction. So, far as the application for staying the proceedings is concerned, it was observed that since the complaint has been ordered to be returned, so no further order is required to be passed on that application. Feeling dissatisfied with the order dated 5.3.2011 passed by Judicial Magistrate Ist class, returning the complaint for presentation to the proper Court, the complainant filed revision against that order. Crl.M.No. M-32542 of 2011 -4- The said revision was accepted vide order dated 12.5.2011 (Annexure P-16). Feeling dissatisfied with the said order dated 12.5.2011 (Annexure P-16) and the order of summoning, the present petition under Section 482 Cr.P.C. has been filed. The main stress laid down in the grounds of revision is that in the month of January 2006, the petitioner found that one cheque bearing No. 925504 was missing and he informed the local police and the bankers about the said loss. The bankers were again informed on 4.4.2008. The controversy whether the cheque has been stolen or not cannot be adjudicated by this Court. That matter can only be decided during the course of trial by the trial Court. It is not disputed during the course of arguments that cheque in question bears the signatures of the petitioner. How the signed cheque came into possession of the complainant, can be adjudicated during the course of trial, alone. Learned Additional Sessions Judge, in his judgment dated 12.5.2011 has dealt with all the aspects regarding jurisdiction of the Civil Court at Bhiwani. Keeping in view the authority reported as K. Bhaskaran vs. Sankaran Vaidhyan Balan and another AIR 1999 (SC) 3762, the Additional Sessions Judge came to the conclusion that cheque can be presented in the jurisdiction of the local Court, where the cheque was presented and intimation regarding dishonour of the cheque was sent. The provisions of Section 482 Cr.P.C. can be invoked only if the petitioner is able to prove that in case the allegations made in the complaint are taken as it is, does not disclose any offence or there is Crl.M.No. M-32542 of 2011 -5- any abuse of process of Court. The petitioner has not been able to make out a case within the ambit of the said facts. It cannot be stated that present complaint under Section 138 of the Negotiable Instruments Act, is the counter blast to the earlier litigation. So, without commenting on the merits of the case, in my view the present petition is without any merit and the same stands dismissed. ( K.C. Puri ) 31.10.2011 Judge chugh