ORDER

RAJANI DUBEY, J. –

1. This petition under Section 482 of CrPC has been preferred against the order dated 26.10.2021 passed by the learned Judicial Magistrate First Class, Raipur in Criminal Case No.2402/2021, whereby the application of the petitioner seeking discharge in the above criminal case has been rejected.

2. Brief facts of the case are that the respondent/complainant firm runs business of production and trading of ispat products through its partner Mr. Om Prakash Agrawal, who manages the entire business of the firm. The petitioners firm are also involved in the business of trading, in which Mr. Neeraj Agrawal is the director and proprietor of the petitioner No.1 G. K. Sons and petitioner No.2 M/s Hariom Trading Pvt. Ltd. The petitioner No.1 G. K. Sons borrowed 21.380 metric tonne M. S. Angle worth Rs.7,93,717/- from the respondent firm on 09.12.2019 and it was assured that the payment would be made on the very next day, but the petitioner firm has not paid the said amount to the respondent firm and only empty assurances were given that the entire payment would be made after some times. Lastly, on 26.12.2020, cheque of Rs.9,84,209/- bearing No.001225 at HDFC Bank, Branch City Avenue, In front of Anupam Garden, G.E. Road Branch, Raipur was issued in favour of the respondent firm by the petitioner No.2 M/s Hariom Trading Pvt. Ltd. When the respondent submitted the said cheque for encashment of the above said amount, it was returned back with a note that the account is freezed, as the said Hariom Firm has already closed in January, 2019. Thereafter, the respondent tried to inform the petitioners firm about the same through his counsel and letters were sent on their address in this regard, but the letters were returned unserved with a note that doors were locked, which resulted into filing of criminal complaint case against the petitioners firm on 07.07.2021 before the learned JMFC, Raipur bearing Criminal Case No.2402/2021 under Sections 138 of the Negotiable Instruments Act, 1881 and Section 420 of IPC, in which on 11.08.2021 particulars of the offence were stated to the accused/petitioners, which was denied by him, thereafter the case was fixed for respondent's evidence. Meanwhile, on 26.10.2021, the petitioners filed an application for closure of complaint case on the ground that since the entire amount has already been paid to the respondent firm, therefore, the criminal case be closed against them, which has been rejected by the learned JMFC vide order dated 26.10.2021, against which the present CRMP has been filed.

3. Learned counsel for the petitioner submits that the impugned order passed by the learned JMFC, Raipur is contrary to the facts and provisions of law as well. The petitioner has falsely been implicated in the present crime in question by filing a false case against him by the respondent. Infact the petitioner had given a blank cheque to the respondent as security at the time of purchasing the articles, which has been misused by the respondent and the petitioner has already paid the entire amount during the period May, 2017 to February, 2018 and proof in this respect has been produced by the petitioners by filing leisure account statement, but the said fact has not been considered by the learned JMFC and the application of the petitioners has been rejected, therefore, the present petition may kindly be allowed and the petitioners may kindly be discharged from the above said criminal case.

4. Learned counsel for the respondent supports the impugned order.

5. Heard learned counsel for the parties and perused the material available on record.

6. The petitioners have filed order sheets and copies of complaint case. It is clear from the copy of complaint that the petitioner No.1 G. K. Sons borrowed 21.380 metric tonne M. S. Angle worth Rs.7,93,717/- from the respondent firm on 09.12.2019 and it was assured that the payment would be made on the very next day, but the petitioner firm has not paid the said amount to the respondent firm and only empty assurances were given that the entire payment would be made after some times. Lastly, on 26.12.2020, cheque of Rs.9,84,209/- bearing No.001225 at HDFC Bank, Branch City Avenue, In front of Anupam Garden, G.E. Road Branch, Raipur was issued in favour of the respondent firm by the petitioner No.2 M/s Hariom Trading Pvt. Ltd. When the respondent submitted the said cheque for encashment of the above said amount, it was returned back with a note that the said account is freezed, as the said Hariom Firm has already closed in the year 2019, which led to filing of complaint by the respondent firm against the petitioners before the JMFC, Raipur under Section 138 of the NI Act and Section 420 of IPC for dishonour of cheque, in which on 11.08.2021, the particulars of offence were stated to the accused/petitioners under Section 251 of CrPC, which was denied by him and thereafter the case was fixed for complainant's evidence. Meanwhile, on 26.10.2021, the petitioners filed an application seeking discharge in criminal case on the ground that since the entire disputed amount has already been paid to the respondent during the period May 2017 to 2018, therefore, the complaint under Section 138 of the NI Act and Section 420 of IPC is not maintainable and accordingly criminal case be closed. The petitioners have also filed copy of statement of leisure account from which payment is said to have been made to the respondent firm. On 26.10.2021 itself, the application of the petitioners has been considered and rejected by the learned JMFC observing that the present case relates to dishonour of cheque, in which on 11.08.2021, the particulars of offence were stated to the accused/petitioners under Section 251 of CrPC, which was denied by him and it was stated that he had given the blank cheque to the respondent firm, which has been misused and thereafter the case was fixed for complainant's evidence. In such circumstances, the present case is a subject matter of evidence, which cannot be decided at this stage without going into merits of the case and accordingly the application of the petitioners was rejected and the case was again fixed for complainant's evidence under Section 254 of CrPC.

7. The similar issue has been considered and decided by the Supreme Court in the matter of Sripati Singh (Since Deceased) through his Son Gaurav Singh vs State of Jharkhand and another¹ [¹2021 SCC Online SC 1002] = 2022(1) L.A.R. 565 = (2021) Law Today Live Doc. Id. 16829 and it has been held in para 23 as under:-

“23. These aspects would prima facie indicate that there was a transaction between the parties towards which a legally recoverable debt was claimed by the appellant and the cheque issued by the respondent No.2 was presented. On such cheque being dishonoured, cause of action had arisen for issuing a notice and presenting the criminal complaint under Section 138 of N.I. Act on the payment not being made. The further defence as to whether the loan had been discharged as agreed by respondent No.2 and in that circumstance the cheque which had been issued as security had not remained live for payment subsequent thereto etc. at best can be a defence for the respondent No.2 to be put forth and to be established in the trial. In any event, it was not a case for the Court to either refuse to take cognizance or to discharge the respondent No.2 in the manner it has been done by the High Court. Therefore, though a criminal complaint under Section 420 IPC was not sustainable in the facts and circumstances of the instant case, the complaint under section 138 of the N.I Act was maintainable and all contentions and the defence were to be considered during the course of the trial.”

8. Applying the principle laid down by the Hon'ble Supreme Court in Sripati Singh (supra) in the present case as well, it is quite vivid that the present complaint case under Section 138 of the NI Act is a summons trial case and the learned Trial Court has rightly held that prima facie application cannot be decided without going into merits of the case in absence of any evidence. This finding of Trial Court is based on correct appreciation of provisions of law, which cannot be interfered with by this Court.

9. The petition being devoid of any merit deserves to be and is hereby dismissed accordingly. No order as to cost (s).

Petition dismissed.

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