Single judge rejected the applicant's prayer to quash Section 138 NI Act proceedings, stating that factual disputes regarding party status are for the trial court, finding no perceptible error in the lower court's order.
Prayer for quashment refused; sixteen day's coercive action stayed subject to filing further application within one month.
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Court No. - 64
Case :- APPLICATION U/S 482 No. - 21560 of 2019
Applicant :- Deepak Jain Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Gorakh Yadav Counsel for Opposite Party :- G.A.
Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record of this application.
This application under Section 482 Cr.P.C. has been filed to quash the complaint case no.212 of 2019, under Section 138 Negotiable Instrument Act, Police Station Sahibabad, District Ghaziabad and summoning order dated 18.02.2019 passed by Additional Civil Judge (S.D.), court no.3, Ghaziabad.
Various contentious issues have been made, prime being that applicant is neither proprietor nor partner of the company in question and has not issued the cheque. He cannot be branded as drawer of the cheque, therefore, proceedings by way of moving the complaint under Section 138 N.I. Act per se erroneous and not maintainable in the eye of law.
Heard learned A.G.A.
Considering the above submissions and taking into consideration the facts and circumstances of the case, obviously, contentious/factual issues have been raised by the applicant, which cannot be appreciated, as it is the domain of the court concerned and re- appreciation of facts cannot be gone into, at this juncture. It is obvious that prima facie, no error is perceptible in the order impugned. In this view of the matter, no
interference is required, therefore, prayer made for quashment of the proceeding is hereby refused.
However, it is provided that in case the applicant moves application for redressal of his grievance within a period of one month from today, the same shall be considered and disposed of in accordance with law after affording opportunity to both the sides by passing speaking and reasoned order.
No coercive action shall be taken against the applicant in the first count for a month from today and in case, any application is moved within the aforesaid period then till disposal of that application, provided the applicant cooperates.
It is made clear that in the event no such application is moved within the time prescribed above, this order will be of no avail to the applicant.
With the above direction, the instant application under Section 482 Cr.P.C. is finally disposed of.
Order Date :- 29.5.2019
Raj
2 issues framed by the court
Whether the applicant, who is neither proprietor nor partner of the company, can be branded as drawer of the cheque for provisions of Section 138 N.I. Act.
Whether the High Court can re-appreciate facts and contentious issues regarding the drawer's identity to allow interference under Section 482 Cr.P.C.
2 provisions across 2 enactments
Deepak Jain
Arvind Kumar Mishra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
