The court dismissed an application to quash proceedings under Section 138 NI Act. The court held that the cheque was prima facie liable to be paid and that factual defences regarding consideration or discharge of debt are matters for trial, not for quashing under Section 482 Cr.P.C.
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Court No. - 64
Case :- APPLICATION U/S 482 No. - 12909 of 2004
Applicant :- Narendra Kumar Opposite Party :- State Of U.P. And Others Counsel for Applicant :- Rakesh Kr.Singh Chauhan,Smt. Neelam Singh Chauhan Counsel for Opposite Party :- Govt. Advocate,D.Tiwari
Hon'ble J.J. Munir,J.
Case called on in the revised list. No one appears on behalf of the applicant. This is an old and assigned matter relating to the year 2004. Sri Dinesh Tiwari, learned counsel for opposite party no. 2 is present. This matter was earlier listed on 10.12.2018, 11.12.2018, 12.12.2018, 13.12.2018, 17.12.2018, 19.12.2018, 02.01.2019 and 03.01.2019, but on none of those days, learned counsel for the applicant turned up. Under such circumstances, this Court is left with no option but to proceed to dispose of this matter on merits, with the assistance of the learned counsel appearing on behalf of opposite party no. 2, and Sri J.B. Singh, learned AGA appearing on behalf of the State.
The records of the case have been perused.
This Application under Section 482 Cr.P.C. has been filed seeking to quash the entire proceedings of Complaint Case No. 1138 of 2004 "R.B.A. Finance vs. Narendra Singh" under Section 138 Negotiable Instrument Act, P.S. Hari Parwat, District Agra pending in the court of learned Additional Chief Judicial Magistrate, Court No. 46, Agra.
A perusal of the facts set out in the affidavit in support of the application and the grounds urged would show that the applicant has been summoned to stand his trial for an offence under Section 138 Negotiable Instrument Act, in relation to a bounced cheque bearing no. 267501 dated 08.12.2003, for a sum of Rs. 1,32,600/-, issued by the applicant in favour of the complainant-opposite party, drawn on Panjab National Bank, Agra. It appears that the said cheque was presented for encashment by the applicant to the Bank of Baroda, Sanjay Place, Agra that came to be returned with a bank memo dated 09.12.2003, reporting that the relative bank account had been closed. It further appears that a notice dated 22.12.2003 by the registered post was sent to the complainant-opposite party, that was served upon him in due course of post, and replied to on 13.01.2004, disputing the applicant's liability to pay, on the basis of lack of consideration. In support of the present application also, the grounds taken appear to be that the amount
due under the cheque had already been paid in cash, depositing the same in six instalments, but the relative cheques were not returned. It is asserted that the cheques were issued in order to secure repayment of a loan given by way of loan advanced under a hire purchase agreement by the complainant-opposite party to the applicant, to finance purchase a motor vehicle bearing Registration No. UP 80 T-9914. It is averred that the entire outstanding towards the said loan has been liquidated by repayment in instalments as above detailed. It is asserted that the act of the opposite party, in not returning the cheques and instead presenting them for encashment, to recover money that he had already received, is not at all countenanced by law, as the debt no longer exists, and, there is no good consideration.
Learned counsel appearing on behalf of opposite party no. 2, on the other hand, submits that the said contention, apart from being factually incorrect, is a matter of defence to be raised at the trial. It cannot be examined by this Court in the present proceedings under Section 482 Cr.P.C.
This Court has carefully considered the matter. The cheque that has been dishonoured is prima facie liable to be paid when presented, and, its dishonour invites liability under Section 138 Negotiable Instrument Act. The applicant has proceeded under the provisions of Negotiable Instrument Act effecting service of notice within the stipulated time about which there is ex facie no dispute. The other contentions are disputed defence of the applicant, which the applicant is free to urge at the trial.
Accordingly, this Application has no merit, and, stands dismissed.
The trial court is directed to expedite and conclude the same within a period of three months from the date of receipt of a certified copy of this order, if not already concluded.
Let a copy of this order be communicated to the Magistrate concerned through the Chief Judicial Magistrate, Agra by the Office forthwith.
Order Date :- 4.1.2019 Deepak
2 issues framed by the court
Whether the High Court can examine the defence of lack of consideration and payment of debt by cheque at the quashing stage under Section 482 Cr.P.C.
Whether the applicant has discharged his burden of proving service of notice.
2 provisions across 2 enactments
Narendra Kumar
State Of U.P.
Munir, J.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
