IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 411/2006 Mohd. Saleem Ansari …….Petitioner Versus State of Uttaranchal & Anr. …….Respondents August 10, 2010 Hon’ble Dharam Veer, J. Heard Mr. KC Tewari, Advocate for the petitioner and Mr. Amit Bhatt, Addl. GA for the State. None appeared 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 1.3.2006 as well as the entire proceedings of Criminal Case No. 97/2006 (New Number 750 of 2006) Abdul Mukhtar v. Mohd. Saleem Ansari under Section 138 of the Negotiable Instruments Act and Section 420 IPC now pending in the Court of CJM, Pithoragarh. Facts, in brief, are that the respondent no. 2 Abdul Mukhtar lodged a complaint against the petitioner stating that the petitioner was a tenant in his house in Pithoragarh. On 28.9.2005, the petitioner for his personal work had taken a loan of Rs. 55,000/- from the complainant and had promised that he would return this amount after two months. When the petitioner did not return the aforesaid amount to the complainant after the aforesaid promised period of two months, then the complainant contacted the petitioner, who gave the complainant a cheque of Rs. 55,000/- dated 30.11.2005 drawn at Bank of India, Almora. When the said cheque was presented before the bank, it was dishonoured on 2.12.2005 for want of sufficient fund. The complainant again presented the said cheque before the bank, which was again dishonoured on 21.1.2006 with the endorsement “Stop Payment”. Thereafter the complainant issued a legal notice to the petitioner through the Advocate under Section 138(b) of the Negotiable Instruments Act which was received by the petitioner on 6.2.2006, but the petitioner neither replied to the said notice nor made the payment of Rs. 55,000/- to the complainant. Thereafter the complainant/respondent no. 2 lodged the complaint before the Magistrate. Learned trial court after recording the statement of the complainant under Section 200 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 and accordingly summoned him vide order dated 1.3.2006. 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 recorded under Section 200 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 2 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. Thus, for the reasons recorded above, the petition is partly allowed. Summoning order dated 1.3.2006 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, which is now pending before the Court of CJM, Pithoragarh as Criminal Case No. 97/2006 (New Number 750 of 2006) Abdul Mukhtar v. Mohd. Saleem Ansari. Interim order dated 22.12.2006 stands vacated. (Dharam Veer, J.) 10.8.2010 PRABODH 3