IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 104/2005 Amarpal …Petitioner. Versus State of Uttaranchal & others …Respondents. Mr. Manish Arora, Advocate for the petitioner. Mr. S.S. Adhikari, learned AGA for State. Mr. Rajendra Singh, learned counsel respondent No.3. Dated: April 20, 2010 Hon’ble B.C. Kandpal, J. (Oral) This petition, U/S 482 Cr.P.C. has been filed for setting aside the order dated 17-7-2004, passed by Civil Judge (J.D.), Roorkee in complaint case No. 158 of 2004, Javed Vs. Amarpal U/S 138 Negotiable Instrument Act and quashing the proceeding of aforesaid said case. The brief facts of the case are that the respondent No.3 filed a complaint against the petitioner U/S 138 Negotiable Instrument Act, with the allegation that on 12.10.2003, the petitioner took a loan of Rs. 40,000/- from the complainant/respondent No.3 and in lieu of it he issued cheque No. 233865 dated 25.12.2003. On 15.1.2004 the complainant presented the cheque before the Oriental Bank of Commerce Branch Roorkee but the same was dishonoured. Then he contacted the accused/petitioner and the accused asked him to present the cheque again before the bank, therefore, he presented the said cheque again bfore the bank on 10.6.2004 and again the cheque was dishonoured by the bank. Thereafter he sent notice to the petitioner and when after receipt of the notice, the petitioner did not pay the money, then he filed the complaint. The learned Magistrate recorded the statement of the complainant U/S 200 Cr.P.C. The complainant also filed documentary evidence before the court and the learned Magistrate vide impugned order dated 17.7.2004 summoned the accused/petitioner to face trial. Feeling aggrieved, the petitioner has file this petition before this court for setting aside the impugned summoning order as well as quashing the proceeding of the complaint case. I have heard learned counsel for the parties and perused the record. Learned counsel for the petitioner has invited my attention towards the notice and has submitted that the cheque was dishonoured on 19-1-2004, but the notice was given to the petitioner on 1.6.2004, i.e. after the expiry of about more than four months. He has submitted that the complaint before the court should have been filed within a period of one from from the date of cause of action. He has also invited my attention towards a judgment of Hon’ble Apex Court, Krishna Exports and Others Vs. Raju Das, reported in (2006) 1 Supreme Court Cases (Cri) 350. Learned counsel for respondent has raised rival contention stating therein that there was no bar on the number of time for presentation of cheque with the bank within six months. Hence in case if the cheque was presented before the bank and was dishonoured and then it was again presented on the assurance given by the petitioner and it was dishonoured, therefore, on the basis of the alleged notice it cannot be said that the complaint is barred. It is true that there is no prohibition on the number of time the cheque is presented before the bank within six months. The only condition is that all the presentation should be within six months. In the instant case it is clear that the cheque was presented before the bank two times within a period of six months. However, on this ground that whether the complant could be filed within a period of one month after the date of cause of action, is a mixed question of law in the present case. The defence would be available to the petitioner during the course of the trial. In proceedings U/S 482 Cr.P.C. this court is not supposed to act as a trial judge. I am not supposed to embark upon an enquiry at this stage, especially under the circumstances when the evidence is still incomplete and hazy. For the discussion made above, the petition lacks merit and is liable to be dismissed. Accordingly, the petition is dismissed. The interim stay order dated 1-3-2005 stands vacated. (B.C. Kandpal, J.) ISB