Smt. Indu Sharma vs Smt. Minakshi Fagediya
2022 Latest Caselaw 11596 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 5382/2019

Smt. Indu Sharma W/o Shri Ghanshyam Sharma, Aged About 57 Years, By Caste Brahmin, R/o Ward No. 18, Near Kalyanji Ka Mandir, Ramgarh Shekhawati, District Sikar At Present Residing At Ratangarh, Tehsil And District Churu.

----Petitioner Versus Smt. Minakshi Fagediya W/o Shri Fularam, By Caste Jat, R/o House No. 78, Parshuram Nagar, Near Agarasen Nagar, Churu.

----Respondent Connected With S.B. Criminal Misc(Pet.) No. 5396/2019 Smt. Indu Sharma W/o Shri Ghanshyam Sharma, Aged About 57 Years, B/c Brahmin, R/o Ward No. 18, Near Kalyanji Ka Mandir, Ramgarh Shekhawati, District Sikar At Present Residing At Ratannagar, Tehsil And District Churu.

----Petitioner Versus Smt. Minakshi Fagediya W/o Sh. Fularam, B/c Jat, R/o House No. 78, Parshuram Nagar, Near Agrasen Nagar, Churu.

                                                                ----Respondent


For Petitioner(s)         :    Mr. Kanti Lal Thakur a/w Mr. MS
                               Panwar
For Respondent(s)         :    Mr. Hardik Gautam

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 15/09/2022 Pronounced on 19/09/2022

1. These criminal misc. petitions under Section 482 Cr.P.C. have

been preferred claiming the following reliefs: -

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      Petition No.5382/2019:

"It is, therefore, most humbly prayed that this criminal misc. petition under Section 482 of Cr.P.C. filed by the accused- petitioner may kindly be allowed and impugned Orders dated 20.07.2019 passed by learned Additional Sessions Judge, Churu, in Criminal Revision No. 113/2016 (102/2016) titled as "Smt. Indu Sharma Vs. Smt. Minakshi" as well as dated 04.10.2016 passed by learned Judicial Magistrate, Churu, in Criminal (Complaint) Case No. 11/2015 titled as "Smt. Minakshi Vs. Smt. Indu Sharma" may kindly be quashed and set aside and the accused petitioner may kindly be ordered to be discharged of the aforesaid offence."

Petition No.5396/2019:

"It is, therefore, most humbly prayed that this criminal misc. petition under Section 482 of Cr.P.C. filed by the accused- petitioner may kindly be allowed and impugned Orders dated 20.07.2019 passed by learned Additional Sessions Judge, Churu, in Criminal Revision No. 112/2016 (101/2016) titled as "Smt. Indu Sharma Vs. Smt. Minakshi" as well as dated 04.10.2016 passed by learned Judicial Magistrate, Churu, in Criminal (Complaint) Case No. 10/2015 titled as "Smt. Minakshi Vs. Smt, Indu Sharma" may kindly be quashed and set aside and the accused petitioner may kindly be ordered to be discharged of the aforesaid offence."

2. Brief facts of the case, as placed before this Court by the

learned counsel for the petitioner, are that on 22.12.2014 the

complainant/respondent filed a complaint against the accused-

petitioner for offence under Section 138 of Negotiable Instrument

Act, 1881 before the learned Judicial Magistrate, Churu, alleging

therein that the accused-petitioner borrowed a sum of

Rs.1,00,000/- from the complainant/respondent, with an

assurance that she would repay the same at the earliest.

2.1. in lieu of the discharge of the debt, the accused-petitioner

issued two cheques bearing nos.538733 and 538737, both dated

21.09.2014 amounting to Rs. 50,000/- each of the Marudhar

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Kshetriya Gramin Bank, Ratannagar, under her signatures in

favour of the complainant/respondent, and handed over the same

to her. Thereafter, the complainant/respondent presented the said

cheques in her Bank, namely, Baroda Rajasthan Kshetriya Gramin

Bank, Branch RIICO, Churu on 07.11.2014, but the same were

dishonoured on account of "insufficient funds" and the information

in regard thereto was received by the respondent through Memo

dated 08.11.2014.

2.2. The complainant/respondent served a legal notice dated

20.11.2014 upon the accused-petitioner against dishonour of the

cheques, but despite the same, the accused-petitioner failed to

make the necessary payments.

2.3. Thereafter, the complainant/respondent filed the complaint,

whereupon the learned Judicial Magistrate, Churu, took

cognizance, vide the impugned order dated 04.10.2016, against

the accused-petitioner under Section 138 of the Negotiable

Instruments Act, 1881. Against the said cognizance order, the

accused-petitioner filed a revision petition before the learned

Additional Sessions Judge, Churu, but the same was dismissed,

vide the impugned order dated 20.07.2019, while upholding the

aforementioned order.

3. Learned counsel for the petitioner submitted that the learned

courts below have not appreciated the correction position of law

involved in the matter as well as the material/evidence available

on record.

4. Learned counsel for the petitioner further submitted that the

complainant/respondent got the legal notice served demanding a

sum of Rs. 1,00,000/- in lieu of the cheque amount of Rs.

50,000/- each, which is not only contrary to the provisions of

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Negotiable Instruments Act, but also the notice was defective and

invalid.

5. Learned counsel for the petitioner, in support of the

submissions so made, placed reliance on the judgments rendered

by the Hon'ble Apex Court in the cases of Suman Sethi Vs. Ajay

K Chudiwal & Ors. (2000) 2 SCC 380, K.R. Indira Vs. Dr. G.

Adinarayana (2003) SCC 300 and Rahul Builders Vs. Arihant

Fertilizers & Chemical & Anr. (2008) 2 SCC 321; he further

placed reliance on the judgment rendered by a Coordinate Bench

of this Hon'ble Court in the case of Sandeep Jain Vs. Smt. Anita

Devi (S.B. Criminal Misc. Pet. No. 139 of 2000 Decided on

06.02.2009). He further placed reliance on the judgments of

various Hon'ble High Courts rendered in the cases of Kapil Dev

Tiwari Vs. State of U.P. & Anr. (U/S 482/378/407 No. 4881

of 2012 Decided by the Hon'ble Allahabad High Court on

02.07.2013); and T.R. Pachamuthu Vs. M/S M.M. Finance

Corporation (Crl.O.P.No 30288 of 2008 Decided by the

Hon'ble Madras High Court on 30.08.2013); and K.Kumaravel

Vs. R.P. Rathinam (Crl.O.P.No 19551 of 2010 and M.P. No. 1

of 2010 Decided by the Hon'ble Madras High Court on

08.12.2010); and Gerard Kollian Vs. Weis Electronics &

Industrial Services (P) Ltd & Three Ors. (Criminal Appeal

No. 1255 of 2018 Decided by the Hon'ble Andhra Pradesh High

Court on 03.06.2014).

6. On other hand, learned counsel for complainant/respondent

opposed the submissions made on behalf of the petitioner and

submitted that the learned courts below have rightly passed the

impugned orders after taking into due consideration the overall

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facts and circumstances of the case, and the evidences placed on

record, to the extent necessary at the stage of the cognizance.

7. Learned counsel for complainant/respondent, in support of

the submissions so made, placed reliance on the judgment

rendered by the Hon'ble Apex Court in the case of Vijay Gopala

Lohar Vs. Pandurang Ramchandra Ghorpade & Anr. (2020)

14 SCC 806.

8. Heard learned counsel for the parties as well as perused the

record of the case, along with the judgments cited at the Bar.

9. This Court finds that at the stage of cognizance, what is

required of the concerned Court is to consider whether any prima

facie case, against the accused, is found to be made out or not. A

detailed analysis and appreciation of the evidence, are subject-

matter of trial.

10. This Court further observes that the judgments cited at the

Bar by the learned counsel for the petitioner do not render any

assistance to the case at hand.

11. In view of the above, this Court does not find any legal

infirmity in the impugned orders passed by the learned courts

below, so as to warrant any interference therein.

12. Consequently, the present petitions are dismissed. All

pending applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

Skant/-

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