Crl. Misc. No. M-21286 of 2011 (O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-21286 of 2011 (O & M) DATE OF DECISION: August 18, 2011 Rajesh Verma .........PETITIONER(S) VERSUS Kamal Thapar ........ RESPONDENT(S) CORAM:HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. Balwinder Singh, Advocate, for Dr. P.K. Sekhon, Advocate, for the petitioner(s). AJAI LAMBA, J. (ORAL) This petition filed under Section 482 Cr.P.C. prays for quashing of complaint no. 175/4 dated 08.06.2010 (Annexure P-1) titled Kamal Thapar vs. Rajesh Verma, pending in the Court of Sub Divisional Judicial Magistrate, Khanna. The petition also prays for quashing of order of summoning, placed on record as Annexure P-2 dated 02.08.2010, vide which the petitioner has been summoned to stand trial for commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'The Act'). The short contention of the learned counsel is that the Magistrate was duty bound to consider the contents of the reply given on behalf of the petitioner-accused to the complainant in response to notice issued under Section 138 of the Act. It has been pleaded that a specific stand has been taken on behalf of the accused in the reply that the cheque book including three signed cheques had been taken by the complainant with the help of Crl. Misc. No. M-21286 of 2011 (O & M) 2 CIA staff, Khanna and the complainant is not holder of the cheque in due course. I have considered the contention of the learned counsel. The petitioner has set up a defence that the negotiable instrument was not given to the respondent in discharge of liability, rather the same had been taken mischievously. Considering the facts and circumstances of the case, in my considered opinion, evidence cannot be taken by way of affidavit and counter affidavit so as to come to a conclusion that no offence under Section 138 of the Act has been committed. Contents of notice indicate a defence taken by the petitioner-accused, which can be taken and proved only before the trial Court in due course. In view of the above, the petition is dismissed. Learned counsel contends that the personal appearance of the petitioner be exempted. Considering the request of the petitioner and the fact that the petitioner has already put in appearance before the trial Court, personal appearance of the petitioner shall remain exempt on the following conditions:- (i)he shall be represented by a counsel before the learned trial Court; (ii)he shall not dispute his identity as accused; (iii)he shall have no objection if the evidence is recorded in his absence; (iv)he shall come present before the learned trial Court as and when required and; Crl. Misc. No. M-21286 of 2011 (O & M) 3 (v)he shall comply with any other condition(s) that may be imposed by the learned trial Court. 18.08.2011 (AJAI LAMBA) shivani JUDGE