IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 265 of 2004 Dinesh Singh S/o Tilak Ram, R/o Firm Priya Automobile Golagokharan nath thana Golagokharan nath District Lakhimpur Khiri .. Petitioner. Versus 1. Manish Kumar Gupta S/o Gopal, Partner Firm Sri Shyam Automobile Company Roorkee Thana Kotwali, Roorkee District Haridwar. 2. State of Uttaranchal .... Respondents. Sri Jagdish Singh Bisht, Learned counsel for the petitioner. Sri Prabhakar Joshi, learned A.G.A. for the respondent/State. Dated: February 13, 2008 Hon’ble B.C. Kandpal, J. By way of this petition U/S 482 of the Cr.P.C., the petitioner has sought the relief for quashing the judgment and order dated 12-3-2004 passed by Additional District and Sessions Judge, Roorkee in Criminal Revision No. 430 of 2002 and the summoning order dated 8-2-2001 as well as the order dated 27-6- 2002 passed by Addl. C.J.M. Roorkee, in Complaint Case No. 1063/2002. 2- Perusal of the record reveals that the respondent No.1 filed a complaint against the petitioner before the Addl. C.J.M. Roorkee U/S 138 of the Negotiable Instrument Act, with the allegation that the accused/petitioner had purchased some goods from the respondent Firm and a sum of Rs. 57,035/- is due against him. On repeated demands, the accused/petitioner issued two cheques amounting to Rs. 10,000/- and 5000/- in favour of the respondent. The respondent deposited the said cheques in his account in Union Bank of India, Roorkee which were dishonoured by the banker on 17-6-2000. Thereafter the respondent issued notice to the petitioner but the petitioner did not pay the amount. The learned Magistrate after recording the statement of the complainant U/S 200 Cr.P.C. and his witnesses U/S 202 Cr.P.C., took cognizance against the accused/petitioner to fact trial U/S 138 of the Negotiable Instrument Act vide order dated 8-2-2001. Thereafter, the petitioner filed protest petition against the summoning order, which was rejected by the learned Addl. C.J.M. vide order dated 27- 6-2002. Feeling aggrieved by the above orders the accused/petitioner preferred a revision before the Addl. District and Sessions Judge, Roorkee, which was dismissed by the revisional court vide order dated 12-3- 2004. 3- The petitioner has preferred this petition on the ground that no cause of action arise against him as he has paid the cheque amount and complied the notice within the stipulated period of 15 days and the learned Magistrate has committed error in passing the summoning order. The revisional Court also ignored the above facts and wrongly dismissed the revision. 4- Heard learned counsel for the petitioner and the learned A.G.A. and perused the record. 5- Learned counsel for the petitioner has submitted that the amount of disputed cheques had been paid by the petitioner to the respondent within stipulated period of 15 days, after receipt of the notice, and in this situation the learned Magistrate should not have taken cognizance against the petitioner, on the complaint filed by the complainant/respondent No.1. 6- The learned A.G.A. has opposed the submission of the learned counsel for the petitioner and contended that the petitioner, nowhere, in his petition, has given the date of receipt of the notice. He also submitted that the complaint case is that the amount paid by the petitioner pertains to some other transaction and at this stage it cannot be concluded that the petitioner has discharged his burden under the provisions of law. 7- After going through the record as well as the submissions raised by the learned counsel, I find no abuse of process of Court in the instant case. Although the petitioner has alleged that he has repaid the amount of disputed cheques but the assertion of the respondent is that the said amount pertains to some other transaction. Further, the petitioner in his petition, has not given the date of receipt of notice sent by the respondent. The points raised in the petition are disputed question of facts and the same can be judged after the parties lead the evidence. The disputed question of facts cannot be judged by me at this stage, where the evidence is still incomplete and hazy and furthermore the petitioner shall have full opportunity to place his defence before the trial Court. I do not find any illegality and impropriety in the impugned summoning order as well as in the order passed by the revisional court. Therefore, no interference is needed by this Court in the criminal proceedings going on against the petitioner/accused. 8- The petition lacks merit and is liable to be dismissed. 9- Accordingly, the petition is dismissed. The interim order dated 16-6-2004, stands vacated. (B.C. Kandpal, J) ISB