IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. M M O No.60 of 2008 Date of decision: 18.12.2008 Shalainder Verma Petitioner Versus Harish Chaudhary Respondent Coram: The Hon’ble Mr.Justice Surinder Singh, J. Whether approved for reporting ?1 .yes. For the petitioner: Mr. C. N. Singh, Advocate. For respondent No.1: Mr. Anand Sharma, Advocate. Surinder Singh, J. (Oral) The petitioner has assailed the order dated 7.8.2007 of his summoning as an accused by the learned trial court on a complaint, filed by the respondent, under section 138 of the Negotiable Instruments Act, inter-alia on the grounds that the complainant has filed a complaint against him with a motive to harass and humiliate him on the basis of bogus, fabricated and fictitious document; no prima-facie case against him is made out and that after summoning him in the case, application Annexure P-3 moved for his discharge before the learned trial court was also wrongly dismissed on 26.5.2008. It is also contended that the statutory notice sent to him was defective wherein name of the bank, to which the cheque 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes 2 pertains, was wrongly mentioned and the cheque dated 6.12.2004 for a sum of Rs.10,75,500/- was presented on the last date, in the collecting bank at Julandhar for its clearance on 4.6.2005, as it being Saturday, the transaction of the bank was up to 12 noon, as such the collection could not have been made from the branch of ICICI Bank of City Centre, Karnal, to which it actually pertained. The complainant through its resources is alleged to have managed the bank to return the memo on the same day i.e. 4.6.2005, which was not possible. Further that the petitioner confirmed from the ICICI Bank Ltd. Karnal the above fact of receiving the said cheque for encashment and vide Annexure P-6 they certified that alleged cheque was unused and was destroyed on the closing date of Account (01-07-2005) . Thus, it is contended that the learned trial court failed to appreciate the serious contentions, raised by the respondent and adopted one sided approach while dismissing the application for discharge. The respondent herein submitted reply to the petition, moved under Article 227 of the Constitution of India read with 482 of the Code of Criminal Procedure by the petitioner. The allegations were controverted. I have heard the learned counsel for the parties and considered their rival contentions. Record of the learned trial court perused. The record of the case reveals that the respondent Harish Chaudhary filed a complaint on 3.8.2005 against the petitioner Shalainder Verma, raising the contention that the petitioner being a 3 close relative wanted to take Hotel Manali Palace, on lease, at Manali and for that purpose he took a loan of Rs.10,75,500/- from him at Dalhousie and issued a cheque No 523351 dated 6.12.2004 for its re-payment from his account No.017305000233 of ICICI Bank Ltd. Karnal Branch, payable at Par at all branches of ICICI Bank Ltd. The respondent presented the said cheque on 4th June,2005 in The Citizen Urban Co-operative Bank Ltd. Branch Office, Mithapur Road, Jallandhar, for its collection, which was returned with the remarks “funds insufficient”. The memo issued by the ICICI Bank was also attached with the complaint. The complainant sent the notice dated 17.6.2005 through his Advocate, calling the respondent to re-pay the cheque amount through registered post as well as under postal certificate at his Manali address, as well as, to Dhandri Kalan G.T.Road, Ludhiana within a period of 15 days. Copies of the postal receipt were also attached with the complaint. He further averred that notice on the Manali address was received back with an endorsement “ “left without address” and the notice at Ludhiana address was also received back with an endorsement “refused to accept”. Both these envelopes have been placed on record. The learned trial court recorded the preliminary evidence. To support his above contention, the complainant examined himself as CW-1, After considering the allegations in the complaint and the averments made before the learned trial court on oath, coupled with the documents, referred to above, the learned trial court found a 4 prima-facie case against the respondent for the offence aforesaid and summoned him as an accused vide order 7.8.2007 The accused-respondent put in appearance on 19.2.2008 and furnished the bail bonds for his presence and the case was thereafter ordered to be listed for 28.4.2008, for putting the notice of accusation, on which date the accused-respondent moved an application for his discharge. The learned trial court dismissed the application by saying that the impugned order cannot be reviewed / recalled for want of jurisdiction. As a matter of fact, offence under section 138 of the Negotiable Instrument Act is a summons case. The procedure for trial of the summons case by the Magistrates is given in Chapter XX of the Code of Criminal Procedure. However, there is a procedure for discharge of the accused under section 245 (2) of the Code in any warrant case instituted otherwise than on a police report, at any previous stage of the case, if the Magistrate for the reasons to be recorded, considers the charge to be groundless but there is no such provision under Chapter XX of the Code while trying a summons case on a complaint. While summoning the accused in this case the Magistrate has properly considered the record about the summoning of the petitioner as accused in the light of the allegations, raised in the complaint, duly supported by the preliminary evidence on oath, which prima-facie constitutes the offence. Therefore, notice of 5 accusation is necessarily required to put to the accused as shifting of evidence is impermissible at that stage. All these issues raised by the petitioner are matter of evidence and required to be established during the trial of the case including the issuance of statutory notice for its proper appreciation. [Please also see V.Raja Kumari versus P.Subbarama Naidu and another (2004) 8 Supreme Court Cases 775]. The burden is on the complainant prima-facie to prove his case and it is open for the accused-petitioner to prove his defence, by preponderance of probabilities during the trial of the case which is also a question of fact. [Please see M.S.Narayana Menon @ Mani versus State of Kerala and another (2006)6 SCC 39] Therefore, in the above circumstances, order of the learned trial for summoning the petitioner as an accused, for the aforesaid offence, and dismissal of his application, seeking for his discharge, cannot be faulted. Accordingly, the instant petition is dismissed and the parties are directed to be present before the learned trial court on 9.1.2009. The Registry is directed to send down the records forthwith. December 18, 2008 (Surinder Singh),J. (D)