Dismissed

Smt. Roshini Narain Agarwal v. State of U.P. and Another

Allahabad HC5 Nov 2019A482/10443/2002

Case brief

AI extract

What is this about?

This single judge application under Section 482 Cr.P.C. for quashing Section 138 NI Act proceedings was dismissed. The court held that the absence of a legally recoverable debt is a question of fact to be decided during trial, where evidence is adduced, and not a question suitable for determination at the preliminary stage under Section 482.

What did the court decide?

Application under Section 482 Cr.P.C. dismissed with no merit found.

Smt. Roshini Narain Agarwal Vs State of U.P. and Another — Cheque Dishonour | Allahabad HC (2019)

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Court No. - 34

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Case :- APPLICATION U/S 482 No. - 10443 of 2002

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Applicant :- Smt. Roshini Narain Agarwal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashwini Kumar Awasthi,Manish Tiwary Counsel for Opposite Party :- Govt.Advocate

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Hon'ble Sudhir Agarwal,J.

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Heard Sri Aushim Luthra, Advocate, holding brief of Sri Manish Tiwary, learned counsel for applicant and learned A.G.A. for State.

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This application under Section 482 Cr.P.C. has been filed praying for quashing of complainat and further proceedings in Criminal Complaint Case No. 7463 of 2001, under Sections 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "Act, 1881"), pending in the Court of Chief Judicial Magistrate, Pilibhit.

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It is contended that there was no legally recoverable debt, therefore, no offence under Section 138 of Act, 1881 is made out.

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After going through the complaint and other documents, I am of the view that question raised in this applicant is a question of fact, which has to be adjudicated during trial and at this stage it cannot be said that commission of cognizable offence is not made out or there is any error legal or otherwise in the order passed by Court below against applicant. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar & Ors.) decided on 15th April, 2019 , Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under :

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"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint . In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.

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16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.

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17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case." (emphasis added)

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No material irregularity in the procedure followed by Court below has been pointed out. It is not a case of grave injustice justifying interference in this application at this stage.

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The application lacks merit and is accordingly dismissed. Order Date :- 5.11.2019 PS

Smt. Roshini Narain Agarwal v. State of U.P. and Another

Case brief

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Smt. Roshini Narain Agarwal v. State of U.P. and Another

Case brief

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