Criminal Misc. No. M-2011 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: September 24,2009 (1) Criminal Misc.No. M-2011 of 2009 Deepak S. Saraf .. Petitioner v. Raj Kumar Sharma .. Respondent (2) Criminal Misc.No. M-2012 of 2009 Deepak S. Saraf .. Petitioner v. Raj Kumar Sharma .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Gorav Kathuria, Advocate for the petitioner. Mr. R. K. Garg, Advocate for the respondent. ... Rajesh Bindal J. This order will dispose of the above mentioned two petitions, as the same arise out of one order of the learned court below. The facts have been extracted from Criminal Misc. No. M-2011 of 2009. Prayer in the present petition is for quashing of complaint filed by the respondent against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 on account of dishonour of cheque No. 41613 dated 8.9.2007 for a sum of Rs. 31,00,000/- drawn on Global Trust Bank Ltd. Mumbai. The complaint was filed on 26.3.2008, as even in response to the notice, the petitioner failed to clear the debt. Learned counsel for the petitioner submitted that though the cheque is stated to have been issued by the petitioner on 8.9.2007 and drawn on Global Trust Bank Limited, Mumbai, but the fact is that Global Trust Bank Limited was Criminal Misc. No. M-2011 of 2009 [2] merged with Oriental Bank of Commerce much prior thereto on 26.7.2004. Nothing has been mentioned in the complaint regarding the date on which loan was advanced to the petitioner. In case, the debt is time barred and legally not enforceable, the complaint itself is not maintainable. The respondent-complainant is purposefully silent on these issues in the complaint. He further submitted that without there being sufficient material on record, the learned court below has summoned the petitioner without recording any satisfaction which can be termed to be sufficient in terms of law. The submission is that continuation of proceedings in the complaint against the petitioner amounts to abuse of process of law and undue harassment of the petitioner, accordingly, the same deserves to be quashed. On the other hand, learned counsel for the respondent submitted that as far as summoning order is concerned, the petitioner cannot raise any grouse against that in this court in the present petition, as he has effective alternative remedy against the same before the learned Sessions Judge. As far as issues regarding raising of loan and issuance of cheque is concerned, it was submitted that it is all matter of evidence and the learned Magistrate will appreciate the issues on the basis of evidence to be led by the parties on that account. The complaint cannot be quashed on the threshold merely on that ground. He further submitted that even though Global Trust Bank Limited had been merged with Oriental Bank of Commerce, but still the cheque carrying the name of Global Trust Bank was still valid and whosoever had the same, he could use the same for the purpose of discharge of debt or for any other purpose. Finally, it was submitted that it is not a case where this Court should exercise extra-ordinary power to quash the complaint. Heard learned counsel for the parties and perused the record. No doubt, the respondent-complainant has not mentioned in the complaint regarding the date when the loan was advanced to the petitioner, however, still in my opinion, merely on that basis the complaint cannot be quashed. These issues can very well be gone into by the learned Magistrate on the basis of evidence to be led by the parties which can be appreciated in terms of the settled position of law. All other issues, namely, issuance of cheque of Global Trust Bank Limited in 2007, when it was merged with Oriental Bank of Commerce way back in July, 2004 and as to whether the cheque had been kept as security or not can also be appreciated only after the conclusion of trial when the parties had already led their evidence. However, still considering the fact that the petitioner is resident of Maharashtra and the complaint is pending in the court at Faridabad, in my opinion, to avoid unnecessary harassment to the petitioner on account of his Criminal Misc. No. M-2011 of 2009 [3] attending every date of hearing, his personal appearance deserves to be exempted. Accordingly, in case an application is moved for the purpose before the court below, it shall consider the same and grant exemption to the petitioner from personal appearance on non-effective dates of hearing, subject to such terms and conditions, as may be fixed, however, considering that trial in the complaint is not delayed. Similar facility can also be extended to the respondent-complainant. For the reasons mentioned above, I do not find any merit in the present petitions. The same are dismissed. However, it is made clear that nothing aforesaid shall effect the merits of the case, which shall be considered and decided by the court below on the basis of evidence to be led by the parties. (Rajesh Bindal) Judge September 24,2009 mk