IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 610/2006 Baljeet Singh …….Petitioner Versus Special Judicial Magistrate, Rishikesh & Anr. …….Respondents August 5, 2010 Hon’ble Dharam Veer, J. Heard Mr. MS Tyagi, Advocate for the petitioner, Mr. Amit Bhatt, Addl. GA for the State and Mr. LK Tiwari, Advocate for the respondent no. 2. By means of this petition, moved under Section 482 of Code of Criminal Procedure, 1973 (for short, CrPC), the petitioner has prayed for quashing the summoning order dated 4.2.2006 passed by the Special Judicial Magistrate, Rishikesh in Complaint Case No. 802/2005, Kishan Lal Jain v. Baljeet Singh & Anr. under Section 138 of the Negotiable Instruments Act and Section 420 IPC. Facts, in brief, are that the respondent no. 2 Kishan Lal Jain filed a complaint against the petitioner/accused stating that the petitioner is his friend who had taken loan of Rs. 50,000/- from him in April, 2005 and it was assured by the petitioner that the said loan amount shall be refunded very soon. When the complainant demanded his money back, then the petitioner gave him a cheque no. 315727 dated 8.4.2005 of the State Bank of India, Rudraprayag amounting to Rs. 50,000/-. When the said cheque was deposited in the bank by the complaint, the same was dishonoured with the endorsement “Account already closed”. Thereafter the complainant gave legal notice to the petitioner, but the said money was not refunded. Thereafter the complainant/respondent no. 2 lodged the instant complaint before the Magistrate. Learned trial court after recording the statement of the complainant under Section 200 CrPC and statement of the witness under Section 202 CrPC and in view of the other documentary evidence produced by him, came to the conclusion that a prima facie case under Section 138 of the Negotiable Instruments Act and Section 420 IPC is made out against the petitioner/accused and accordingly summoned him vide order dated 4.2.2006. Learned Counsel for the petitioner argued that on the basis of the averments made in the complaint, no offence under Section 420 IPC is made out against the petitioner. Not a single allegation has been made in the complaint, which may constitute any offence of cheating against him. ‘Cheating’ has been defined under Section 415 IPC which is reproduced as under: “Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.” From a bare reading of the definition of cheating quoted above as well as on perusal of the complaint, statement of the complainant recorded under Section 200 CrPC and statement of the witness recorded under Section 202 CrPC and other evidence available on the record, it is apparent that the ingredients of cheating are not attracted against the petitioner and, therefore, no offence under Section 420 IPC is made out against the petitioner. However, the ingredients of Section 138 of the Negotiable Instruments Act are made out against the petitioner and prima facie it appears that petitioner has committed the offence punishable under Section 138 of the Negotiable Instruments Act., which can be decided only by the trial court after recording the oral and documentary evidence. 2 Thus, for the reasons recorded above, the petition is partly allowed. Summoning order dated 4.2.2006 and the proceedings against the petitioner only under Section 420 IPC is hereby quashed. However, proceedings under Section 138 of the Negotiable Instruments Act shall proceed against the petitioner/ accused, which is now pending before the Court of Special Judicial Magistrate, Rishikesh as Complaint Case No. 802/2005, Kishan Lal Jain v. Baljeet Singh & Anr. Interim order dated 2.8.2006 stands vacated. (Dharam Veer, J.) 5.8.2010 PRABODH 3