S'iAr- IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR. Cr.M.P. No. rl ^ | of 2010 singie Bench PETITIONER ^f Ravindra. Kishore S/o Guptesliwar Nath Rai, aged about 40 years, .-"'<^^ R/o Nalanda colony, Bariyak, ^..-^^.^ --, - -.--„ ——^,, ^—.J^.., •••".^AS'''' ^^ ^ ^p^" •••^ Ranchi Jharkhand another ,.c ^' .-»"• A.^'^ address- C/o Hiramuni Roadwaus .o^- Pvt. Ltd. Batkeshwardutt Lane, .^^ <sfs«S^ 3^' vw' ..^^'^~'WV'SS> ''%.. Jakkanpur, District and Post Patna Bihar and Trisla Construction Company,' Shop No. 3 Krishiia Tower, Mainroad l-1inu, Ranchi Kharkhand VERSUS Shashikant TiwariS/o Shri l^illan TiwariR/o Sahkari Path, Infront of Telephone Office, Choubey Colony Raipur C.G. PETITION UNDER SBCTION 482 OF THE CODE OF CRIMINAL PROCEDURE , 1973 £1^1 ^•s;^l^ Bife^ya HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : HON'BLE SHM MANINDRA^IQHAN SHR1VASTAVA,J. PETITIONER RESPONDENT Cr.M.P. No.714/2010 Ravindra Kishore Versus Shashikant Tiwari (Petitipn u/S 482 ofthe Cr.P.CJ Apjiearance: Shri Rakesh Pandey, counsel for the petitioner. ORAL- ORDER (Passedon 13.09.2010) 1. This petition under Section 482 6f the Cr.P.C. has been filed for quashing the complaint registered against the petitioner by complainant - Shashikant Tiwari, alleging commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act qf 1881"}. 2. Submission of learned counsel for the petitioner is that the compliant does not make out a case for proceedings, inasmuch as the cheque was issued by the petitioner to the complainant, but the agreement pursuant to which the cheque was issued, was not signed by Rajani Kant Tiwari, brother of the complainant. He submits that unless the agreement is signed by brother of the complainant, the liability in discharge of which the cheque was issued does no arise. He further -2- 'e**»^ ^1:?' submits that the coniplainant is therefore was not entitled to the amount, which is amount payable under the cheque. Learned counsel for the petitioner placed reliance on the decision of Supreme Court in the case of Ra1 Kuniar Khurana Vs. State of (NCT of Delhi) & another1 . 3. From perusal of the complaint placed on record as Annexure P-5, it is found that the complainant had made an allegation that under an agreement dated 18.6.2006, the petitioner had issued a cheque of Rs.9,00,000/- in favour of the complainant. The other averment made in the compliant are that the aforesaid cheque was presented in the bank, where it was dis-honoured on the ground that there is a communication froni the account holder/petitioner for not making payment. Thereafter, the complainant sent notice for payment of amount and the petitioner refused to receive and as the payment was not made within 15 days, complaint has been filed. 4. If the entire complaint is taken as it is, it prima facie contains all the ingredients of commission of offence under Section 138 of the Act of 1881. Submission of learned counsel for the petitioner that the liability would not accrue to the petitioner, is his defence. In view of the provision contained in Section 139 of the Act of 1881, at this stage, it has to be presumed, unless the contrary is proved that the holder of a cheque received the cheque of the nature referred to in Section 138 of the Act of 1881 for the discharge of any debt or other liability. Therefore, at this stage defence of the petidoner cannot be considered, (2009) 6 SCC 72 -3- SS8SJI though it would be open for him to take all such defence as are available to him during trial. Reliance placed on the decision of Supreme Court in the Case of Raj Kuinar Khurana (supra) is misplaced, inasmuch as that was a case where the accused, who had issued the cheque, had already lodged police report with regard.to cheuqes having been stolen. The ratio laid down in the aforesaid decision of the Supreme Court is that before a proceeding initiated, all the legal requirements inust be complied with. It has also been held therein that the Court must be satisfied that all the ingredients of the commission of offence under the said provision, have been complied with. 5. In the very nature of the case, which is before this Court, after considering the submission inade by learned counsel for the petitioner, I do not find that any provision of law has been violated on the ground raised before this Court. It has to be noted that it is not the stage for the Magistrate to form an opinion as to whether the case for conviction is made out or not, but the Magistrate raay proceed with the compliant if there are sufficient grounds for proceeding. 6. Consequently, I do not find any merit in the petition. The same is liable to be and is accordingly dismissed. _-——-_ ManindraM^Shriva^ava Praveen