Rajiv Sharma, J. - Since common questions of law and facts are involved in both the petitions, the same were taken up together for hearing and are being disposed of by a common judgment. However, in order to maintain clarity, facts of each petition are being dealt with separately.

Cr. M.M.O. No. 195/2015

2. Respondent-complainant (hereinafter referred to as the "complainant" for convenience sake) has filed a complaint against the petitioners-accused (hereinafter referred to as the "accused" for convenience sake). Accused No.1 has purchased goods on credit basis from the complainant vide invoice No. 048 dated 2.8.2012 for total consideration of Rs. 1,08,709/-. He has issued a cheque vide No. 295047 dated 8.8.2012 of Rs. 1,08,709/- drawn on UCO Bank, Dhamla Branch, District Sirmaur. The respondent had presented/deposited the cheque drawn on UCO Bank, Dhamla Branch, District Sirmaour in his bank, i.e. The Bhaghat Urban Cooperative Bank Limited, Solan Branch for encashment. However, the cheque was dishonoured by the drawee bank with a memo dated 10.9.2012. indicating the reason "drawer signature differ/incomplete". This information was received by the complainant on 17.9.2012. The complainant issued a demand notice on 16.10.2012. through his counsel to accused No.1. It was received by the accused on 19.10.2012. Reply was filed to demand notice on 5.11.2012. Thereafter, the complainant filed a complaint under section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the "Act" for brevity sake) against the accused before the Judicial Magistrate 1st Class, Solan bearing Case No. 1223/3/13/12. The complaint was fixed for office report before the Judicial Magistrate 1st Class, Solan on 14.12.2012. Summons were issued to the accused under section 138 of the Act. The complaint was returned to the complainant on 8.12.2014. Thereafter, the same was filed before the Judicial Magistrate 1st Class, Rajgarh, District Sirmour. It was registered on 27.1.2015. Accused were summoned on 21.4.2015. They were asked to furnish bail and surety bond to the sum of Rs. 55,000/- along with one surety for the like amount. The trial court deferred notice of accusation for the next date of hearing, i.e. 3.7.2015. Accused have challenged the orders dated 27.1.2015 and 21.4.2015. whereby they were summoned and the next date of notice of accusation was fixed on 3.7.2015.

Cr. M.M.O. 342/2015

3. Petitioner-complainant (hereinafter referred to as the "complainant") filed a complaint under section 138 of the Act and under section 420 read with section 34 of the Indian Penal Code. However, cognizance was taken under section 138 of the Act only and not under section 420 read with section 34 of the Indian Penal Code. According to the averments made in the petition, accused No.1 had issued a cheque duly signed by him in favour of the complainant dated 8.8.2012. Accused No.1 has issued the cheque out of the cheque book of accused No.2, i.e. Asha Devi. Thus, he has committed offence under section 138 of the Act and under section 420 read with section 34 of the Indian Penal Code.

4. Mr. Ashwani K. Sharma has vehemently argued that cognizance could not be taken under section 138 of the Act by the learned trial court. According to him, mandatory provisions of section 138 of the Act have not been complied with.

5. Mr. Ramakant Sharma, learned Senior Advocate has vehemently argued that the trial court ought to have taken cognizance under section 420 read with section 34 of the Indian Penal Code as well instead of confining it to section 138 of the Act.

6. I have heard the learned counsel for the parties and have gone through the pleadings carefully.

7. It has come on record that accused No.1 has issued a cheque from the cheque book of his wife, accused No.2 Asha Devi, on 8.8.2012. The cheque was presented before the bank. The same was dishonoured. Thereafter, demand notice was issued on 16.10.2012. Reply was filed on 5.11.2012. The trial court has taken a cognizance against the accused only under section 138 of the Act and they were summoned on 27.1.2015 for 21.4.2015. Thereafter, on 21.4.2015. trial court directed the accused to furnish bail and surety bond to the sum of Rs. 55,000/- along with one surety for the like amount. The bail bonds were accepted. The notice of accusation to be put to accused was deferred for 3.7.2015.

8. The Court is of the considered view that prima facie case has been made out against the accused under section 138 of the Act as well as under section 420 read with section 34 of the Indian Penal Code. In the present case, cheque has been dishonoured and accused No. 1 Randeep Singh Attri had no authority to issue cheque by misusing the cheque book of his wife Asha Devi. The trial court on the basis of material on record ought to have taken cognizance under section 420 read with section 34 of the Indian Penal Code as well.

9. The question whether only photocopy of cheque along with complaint was filed or not or there was breach of mandatory provisions of section 138 of the Act would be gone into by the trial court after the parties adduce their evidence.

10. Accordingly, in view of the analysis and discussion made herein above, Cr. M.M.O. 195/2015 is dismissed and Cr. M.M.O. 342/2015 is allowed. Orders dated 27.1.2015. and 21.4.2015. rendered in Case No. 31/3 of 2015 by the Judicial Magistrate 1st Class, Rajgarh, District Sirmour are modified and the trial court is ordered to summon the accused under section 420 read with section 34 of the Indian Penal Code along with under section 138 of the Negotiable Instrument Act, 1881. Pending application(s), if any, also stands disposed of.

11. It is made clear that the observation made herein above shall have no bearing on the merits of the main case.