IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Criminal Misc. Application No. 10 of 2005 Km. Shilpi D/o Naresh Chandra R/o Quarter No. A-2/24, C.P.P. Staff Colony, Lalkua Century Paper Mill, Lalkua Nainital .. Petitioner. Versus 1. State of Uttaranchal, 2. Rohitash S/o Vinay Bhardwaj R/o 1081 Jha Colony Pantnagar Hall 2/410 Hospital Colony, Pantnagar, District U.S. Nagar ... Respondents. Sri T.A. Khan, learned counsel for the petitioner. Sri Nandan Arya, Learned A.G.A. for the State. Sri D.K. Sharma, learned counsel for the respondent No.2. Dated: 03-01-2008 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 order dated 10-12-2004, passed by the C.J.M. U.S. Nagar in criminal case No. 3719 of 2004, by which the petitioner was summoned to face trial U/S 138 of the Negotiable Instruments Act. 2- Brief facts of the case, as per the allegations made in the petition, are that the applicant was getting education at campus school, Pantnagar in the year 1998 and the respondent No.2 was senior to her and they were well known to each other. According to the respondent No.2 he had spent huge amount on the education of the petitioner. It is also alleged by the respondent No.2 that he performed marriage with the petitioner in the temple and he gave money to her from time to time and when the respondent No.2 met with an accident, the parents of the petitioner refused to marry the petitioner with the respondent No.2. When the respondent No.2 asked to pay the money spent by him on the petitioner, the petitioner issued cheque in favour of the respondent No.2 amounting to Rs. 3,00,000/-. On 30-9-2004 a notice was served by the respondent No.2 with an allegation that the cheque issued by the petitioner of State Bank of Patiala, Yamuna Nagar Haryana, in favour of the respondent No.2 was dishonoured. Thereafter, the respondent No.2 filed complaint against the applicant before C.J.M. Rudrapur. The learned Magistrate took statement of the complainant U/S 200 Cr.P.C. and finding prima facie case, ha taken cognizance against the petitioner to face trial U/S 138 of the Negotiable Instruments Act vide impugned order. The petitioner has challenged the summoning order on the ground that the learned Magistrate has taken the evidence of the complainant U/S 200 Cr.P.C. in the form of affidavit which is contrary to the provisions of the Cr.P.C. He should have recorded the on oath statement before taking cognizance. Therefore, provisions of Section 200 Cr.P.C. have not been complied with and he has committed illegality in passing the cognizance order. 3- The respondent No.3 filed counter affidavit denying the allegations made in the petition. It has been alleged in the counter affidavit that Section 145 Negotiable Instrument Act empowers a Judicial Magistrate to take the evidence of a complainant in the form of an affidavit and the same can be read in evidence in any inquiry or trial under the Cr.P.C. The grounds taken by the petitioner in the petition are disputed question of fact and the same cannot be adjudged in a petition U/S 482 of the Cr.P.C. 4- Heard learned counsel for the parties and perused the record. 5- The learned counsel for the petitioner submitted that the blank cheque having signatures of the petitioner was stolen by the respondent No.2 and it was utilized against the petitioner in order to exhort money from the petitioner and her parents. It was also argued by the learned counsel for the petitioner that the respondent No.2 never spent any money on the education and other daily needs of the petitioner. The false story has been developed about the marriage of the parties in the temple. The learned Magistrate has ignored the true facts of the case and passed the cognizance order in a cursory manner and the same is liable to be quashed. 6- On the other hand learned counsel for the respondent No.2 has refuted the above submissions of the learned counsel for the petitioner on the ground that the cheque was issued in favour of the respondent No.2 by the petitioner in the bonafide. The petitioner had developed false story of stealing the cheque. No F.I.R. has been made about the theft of the cheque from the side of the petitioner. The learned Magistrate was competent to take cognizance on the evidence adduced before it by the complainant in the form of affidavit U/S 200 Cr.P.C. as per the provision of Section 145 of the Negotiable Instrument Act. 7- After having considered the submissions raised by the learned counsel for the parties and having gone through the material on record, I am of the considered view that no abuse of process of the court is there in the instant case. The grounds taken by the petitioner in the petition are the disputed question of fact and the trial court can adjudge the same when the parties will adduce the evidence there. This court while exercising the jurisdiction under Section 482 of the Cr.P.C. is not competent enough to decide the disputed question of fact when the evidence is still hazy and incomplete. 8- So far as the ground taken by the petitioner in her petition that provisions of Section 200 Cr.P.C. have not been complied with by the learned Magistrate while taking cognizance in the matter, is concerned, Section 145 (1) of Negotiable Instrument Act makes provision that – notwithstanding anything contained in the Code of Criminal Procedure, 1973, the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code’, therefore in view of above specific provision, no error of law was committed by the Magistrate concerned. The learned Magistrate was satisfied with the averments made in the complaint as well as the statement of the complainant U/S 200 Cr.P.C. adduced in the form of affidavit that prima facie case U/S 138 of the Negotiable Instrument Act, has been made out and accordingly he has taken the cognizance against the petitioner. I do not find any illegality and impropriety in the said order. 9- For the aforesaid reasons the petition lacks merit and is liable to be dismissed. 10- Accordingly the petition is dismissed. The interim order dated 12-1-2005, stands vacated. (B.C. Kandpal, J.) ISB