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TMI Blog2022 (11) TMI 1083X X X X Extracts X X X X X X X X Extracts X X X X ..... mat of the said cheque return memo then it can be addressed during the course of trial. The petitioner has not disputed the issuance of cheque under his signature and the dishonour of the cheque by the concerned Banker. There is no infirmity or illegality in the impugned order. The concerned Court has not committed any illegality while relying on the said cheque return memo dated 04.07.2019 before issuance of the summons against the accused no. 1 to 3 which also includes the petitioner as accused no. 2. The decision delivered by the Himachal Pradesh High Court does not provide any help to the petitioner. Petition dismissed. - CRL.M.C. 4100/2022 & CRL.M.A. 16919/2022(Stay) - - - Dated:- 14-11-2022 - HON BLE MR. JUSTICE SUDHIR KUMAR JAIN Petitioner Through: Mr. Mandeep Singh Vinaik, Mr. Pawan Kumar Dhiman and Ms.Simmi Bhamrah Kumar, Advocates. Respondents Through: Mr. Hitesh Vali , APP with Ms. Akanksha Sharma, Advocate for State/R-1. Ms. Sonal Anand, Mr.Aayush Sai and Ms.Surbhi Singh, Advocates for R-2. JUDGMENT 1. The present petition is filed under section 482 Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ) for quashing the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.07.2019 to make the payment of Rs.47,53,519/- alongwith confirmation letter dated 18.03.2019. The petitioner on 27.06.2019, sent an e-mail to the respondent no. 2 asking him not to present the cheque in the bank for encashment which was replied by the respondent no. 2 on 28.06.2019. The respondent no. 2 presented the said cheque to his Banker i.e. the Syndicate Bank, Rajouri Garden on 03.07.2019 which was returned back unpaid due to the reason account blocked vide return memo dated 04.07.2019. Thereafter, the respondent no. 2 served a legal notice dated 18.07.2019 through counsel on the official address of the accused no. 1, petitioner and the accused no. 3 and 4 which was returned back with the remarks always door locked /not received despite repeated attempts and leaving intimation. The respondent no. 2 being aggrieved, filed a complaint. 3. The trial Court vide impugned order, took the cognizance for the offence punishable under section 138 of the NI Act against the accused no. 1, petitioner and the accused number 3. The impugned order reads as under:- This is complaint filed for offence punishable under Section 138 N.I. Act. Complaint, affidavit of evidence and oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishable under Section 138 N.I. Act. Hence, issue summons against accused nos. 1 to 3 on filing of PF/RC returnable on 04.12.2019. 4. The petitioner being aggrieved by the impugned order, filed the present petition to challenge the impugned order on the ground that the respondent no. 2 has failed to file a cheque return memo before the trial Court and only the photocopy of the cheque return memo was submitted before the trial Court. It is further stated that a document purporting to be a cheque return memo filed by the respondent no. 2 before the trial Court is not admissible in law and cannot be look into. The cheque return memo filed by the respondent no. 2 was without any bank seal and mark which fails the presumption of section 146 of the NI Act. The respondent no. 2 has not filed original cheque return memo and the document so submitted by the respondent no. 2 is an internal document of the bank which was not certified by the Banker under the provisions of the Bankers Book (Evidence) Act, 1891. It is a mandate of the law that the cheque return memo is to be presented before the Court before the summoning of the accused. The trial Court has not taken into account the al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,519/- could not be encashed due to the account blocked . If it is presumed that there is any irregularity or illegality in the format of the said cheque return memo then it can be addressed during the course of trial. The petitioner has not disputed the issuance of cheque under his signature and the dishonour of the cheque by the concerned Banker. 11. The grounds as taken by the petitioner to attack the impugned order are without any factual and legal basis. There is no infirmity or illegality in the impugned order. The concerned Court has not committed any illegality while relying on the said cheque return memo dated 04.07.2019 before issuance of the summons against the accused no. 1 to 3 which also includes the petitioner as accused no. 2. The decision delivered by the Himachal Pradesh High Court does not provide any help to the petitioner. 12. The present petition is misconceived and it appears that, it has been filed to delay the proceedings of the case. Accordingly, the present petition alongwith pending applications, if any, is dismissed. The trial Court is directed to expedite the trial of the present complaint. 13. Copy of this order be sent to the concerned tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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