IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 908/2010 Mahendra Singh …….Petitioner Versus State of Uttarakhand & Anr. …….Respondents September 27, 2010 Hon’ble Dharam Veer, J. Heard Mr. Neeraj Garg, Advocate for the petitioner and Mr. MA Khan, Brief Holder for the State. 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 5.8.2010 as well as the entire proceedings of Complaint Complaint Case No. 934/2010 Vinod Singh v. Mahendra Singh under Section 138 of Negotiable Instruments Act pending in the Court of Additional Judicial Magistrate, Rishikesh. Facts, in brief, are that the respondent no. 2 filed a complaint with the allegation that an oral agreement took place between him and the petitioner for purchase of 500 sq. yd. land for a total sale consideration of rupees ten lakhs and on 24.12.2005, the complainant gave rupees eight lakhs cash to the petitioner as advance payment and an agreement was also written and possession of the land was also handed over to the complainant. But the petitioner encroached upon the land again and did not execute the sale deed. The complainant filed a complaint before the court in which a compromise took place between the parties according to which petitioner agreed to pay rupees twelve lakhs to the complainant and accordingly the petitioner gave rupees three lakhs in cash and for the rest amount of rupees nine lakhs, he issued a cheque to the complainant. The said cheque was dishonoured by the bank with the endorsement “account closed”. Thereafter complainant gave a legal notice to the petitioner, but the petitioner did not return his money. Thereafter he lodged the present complaint before the Magistrate. Learned trial court 2 after recording the statement of the complainant under Section 200 CrPC and the statement of the witness under Section 202 CrPC and in view of the documentary evidence adduced by the complainant, came to the conclusion that a prima facie case under Section 138 NI Act is made out against the petitioner and accordingly summoned him vide order dated 5.8.2010. Learned Counsel for the petitioner argued that petitioner has been falsely implicated in this case. I do not find any force in the argument of learned Counsel for the petitioners due to the reasons that averments made in the complaint are corroborated by the statement of the complainant under Section 200 CrPC and the statement of the witness under Section 202 CrPC and other documentary evidence produced by the complainant. Having considered the arguments advanced by learned counsel for the petitioners; perusal of complaint, summoning order dated 5.8.2010, statements recorded under Section 200 and 202 CrPC and other papers available on record, I am of the view that a prima facie case under the aforesaid Section is made out against the petitioner. Even otherwise, the dispute involves factual question which cannot be decided by this Court. The dispute can be decided only after adducing the oral and the documentary evidence by the parties before the trial court. It cannot be decided by this Court only on the basis of papers filed on the record. Even otherwise, the trial court will decide the case after recording the evidence of the complainant as well as of the accused and also on the basis of the appreciation of the evidence as per law. If the allegations made and the evidence oral as well as documentary produced against the accused and the statements of witnesses are taken at their face value and accepted in their entirety, I am of the view that the petitioner has rightly been summoned by the trial court. The trial court will decide the case after recording the evidence adduced before it. I am of the view that in the present case there is neither any miscarriage of justice nor any abuse of process of Court. 3 Accordingly, the petition being devoid of merit is dismissed in limine. (Dharam Veer, J.) 27.9.2010 PRABODH