IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISC. APPLICATION NO.223 OF 2007 (U/s 482 of Cr.P.C.) Ram Gopal …………Applicant Versus Special Judicial Magistrate, Rishikesh and another …………Respondents Dated: October 26, 2010 HON. DHARAM VEER, J. Heard Mr. Arvind Vashishtha, Advocate holding brief of Mrs. Meenu Sharma, Advocate for the applicant, Mr. M.A. Khan, Brief Holder for the State and Ms. Anjali Noliyal, Advocate for respondent no.2. By means of this petition, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short Cr.P.C.), the applicant has sought quashing of proceedings of Case No.105 of 2006, Amit Suri v. Ram Gopal, under Sections 138 of The Negotiable Instruments Act, 1881 (for short, the Act) and 420 of The Indian Penal Code, 1860 (for short, IPC) as well as summoning order dated 12.4.2006 passed therein by Special Judicial Magistrate, Rishikesh, Dehradun. Brief facts of the case are that respondent no.2 Amit Suri filed a complaint before Special Judicial Magistrate, Rishikesh against the applicant alleging therein that the applicant purchased a machine from the shop of complainant in respect of which the applicant issued a cheque dated 9.7.2005 bearing no.0515945 amounting to ` 40,000/- in favour of the complainant. It is alleged that after the assurance of the applicant when the complainant presented the said cheque in the bank the same was returned to him with the remark “Accounts Closed”. Thereafter, the complainant through his counsel served a notice through registered post upon the applicant but even after service of notice, the applicant did not pay the money of the 2 complainant. With the same averments, respondent no.2 filed the present complaint against the applicant in the court. In support of his complaint, the complainant filed certain papers and got himself examined u/s 200 Cr.P.C. After hearing learned counsel for the complainant and perusing the entire material available, learned Special Judicial Magistrate, Rishikesh, Dehradun vide his order dated 12.4.2006, summoned the applicant under sections 420 IPC and 138 of N.I. Act. Feeling aggrieved, the applicant has preferred the present C482 petition before this Court. Learned counsel for the applicant argued that the summoning order dated 12.4.2006 passed by Special Judicial Magistrate, Rishikesh, Dehradun under Section 420 of IPC is not justified and correct. He further argued that for the sake of arguments if the allegations of the complaint are taken to be true, then in that event also at the most, prima facie the offence u/s 138 of the Act only is made out against the applicant. I find force in the argument put forth by learned counsel for the applicant. From a perusal of the contents of the complaint and the statement of the complainant recorded u/s 200 Cr.P.C., I find that the ingredients of Section 420 of IPC are not attracted in this case as no allegations of cheating have been made against the present applicant and whatever the allegations are there, they are regarding dishonour of cheque. As such, I am of the view that since the offence punishable u/s 420 of IPC is not made out, therefore, the criminal proceedings with respect to the said offence are liable to be quashed. So far as the offence punishable u/s 138 of the Act is concerned, it transpires that disputed questions of facts are involved in the instance case. It is well settled that while exercising jurisdiction under section 482 of the Cr.P.C., this Court would not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial court, which will decide the case after recording the evidence adduced before it. However, if the allegations made in the complaint are taken at 3 their face value and accepted in their entirety, I am of the view that the applicant has rightly been summoned by the trial court under Section 138 of the Act. For the reasons recorded above, the C482 application is partly allowed with the observation that the proceedings of Case No.105 of 2006, Amit Suri v. Ram Gopal, so far it relates to offence punishable u/s 420 of IPC is concerned, are hereby quashed. However, so far as the offence u/s 138 of the Act is concerned, the trial court shall proceed against the applicant as per law. (CRMA No.304 of 2007 stands disposed of accordingly). (Dharam Veer, J.) 26.10.2010 RG