IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. App. No. 266 of 2010 Durgesh Negi S/o Rajmohan Singh Negi R/o Village-Khatena P.O. Saterakhal District Rudraprayag At present Belani, P.O. Rudraprayag District Rudraprayag. …………..…Petitioner. Versus Kuldeep Negi S/o Madan Singh Negi R/o Shri Om Automobile Rudraprayag. ……….Respondent. Shri G.S. Negi, Advocate for the petitioner. Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Section 482 of Code of Criminal Procedure, 1973, (for short Cr.P.C.) the petitioner has sought quashing of proceedings of criminal complaint case No. 1104 of 2009, Kuldeep Negi Vs. Durgesh Negi, relating to offence punishable under Section 138 of Negotiable Instruments Act, 1881, pending in the court of Chief Judicial Magistrate, Rudraprayag. 2. Heard. 3. Learned counsel for the petitioner drew attention of this Court to case of Lalit Kumar 2 Sharma and another Vs. Sate of U.P. and another (2008) 5 Supreme Court Cases 638, and argued that when the second cheque is issued to compensate the first dishonoured cheque, no offence punishable under Section 138 of Negotiable Instruments Act, 1881, can be complained in respect of the subsequent cheque. On perusal of aforesaid case law, this Court finds that in said case, there was earlier criminal complaint in respect of the earlier cheque issued and the court treated the entire transaction as one and in that circumstance, subsequent complaint was held to be untenable. The facts of the present case are different and it is not the second complaint, which is challenged. Also, it is pleaded that the service of notice cannot be presumed, as pleaded in the complaint and the criminal complaint filed, is liable to be quashed. 4. Whether there is sufficient service of notice or not is a question of fact, which can be examined by the trial court after recording the evidence. It is not desirable on the part of this Court in its jurisdiction under Section 482 Cr.P.C. to hold at this stage whether the accused (present petitioner) was served with the notices or not, if so, on which date. 5. For the reasons, as discussed above, this Court is not inclined to interfere with the trial of 3 the aforesaid criminal complaint case. The petition under Section 482 Cr.P.C. is dismissed with the observation that the points raised before this Court, can be pleaded by the accused, before the trial court. (Prafulla C. Pant, J.) Dt:30.03.2010 Sweta