Dismissed

Murshid v. State of U.P. and 2 Others

Allahabad HC16 Jun 2020A482/10681/2020

Case brief

AI extract

What is this about?

The current application seeks to quash the summoning order in a Section 138 N.I. Act case. The court held that the applicant's submissions relate to disputed questions of fact which are not triable by this court under Section 482. The prayer for quashing was refused. A conditional stay was granted for 30 days if the applicant surrenders and applies for bail below.

What did the court decide?

The prayer for quashing the summoning order is refused. A conditional stay of coercive proceedings is granted for 30 days if the applicant appears, surrenders, and applies for bail in the lower court.

Murshid Vs State of U.P. and 2 Others — Cheque Dishonour | Allahabad HC (2020)

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Court No. - 43

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Case :- APPLICATION U/S 482 No. - 10681 of 2020

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Applicant :- Murshid Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Mohd. Shahanshah Khan Counsel for Opposite Party :- G.A.

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Hon'ble Ali Zamin,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

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The present application under Section 482 Cr.P.C. has been filed for quashing the impugned summoning order dated 13.12.2019 (Annexure No.5) passed by learned Additional Chief Judicial Magistrate/Civil Judge (S.D.) F.T.C. Mirzapur in complaint case no. 3198 of 2019, under Section 138 N.I.Act, Kotwali Katra, District Mirzapur.

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Learned counsel for the applicant submits that the applicant Mursheed Ahmad is Proprietor of Simeran Auto-E Rickshaw. He took a debt of Rs. 5,60,000/- from Subhash Gupta and for the security of the debt, he handed over cheque nos. 371451, 371452, 371453 and 371454 of Account No.3198413031065 of Simran Auto, Dena Bank, Mirzapur regarding which on 28.09.2017 written deed was also prepared on the stamp of Rs.100/-. When applicant demanded a certificate for closed account from Subhash Gupta, opposite party no.3 then the blank cheques were handed over to anti social element by Subhash Gupta and on the basis of the blank cheques a Case No.3198 of 2019, under Section 138 N.I.Act has been filed by Kuldeep Singh. He submits that before filing the complaint case he had filed Writ-C No. 12481 of 2019 against the anti social element alleging that from mobile no. 9839239000 and 7007293072 threatening messages are being sent, in which this Court was pleased to pass the order dated 11.04..2019 that if FIR is not registered, he can file application under Section 156 (3) Cr.P.C. then on his application under Section 156(3) Cr.P.C. Case Crime No.0212 of 2019, under Section 384 and 406 I.P.C was registered against Subhash Chand Gupta and unknown. In the writ petition he had sought a direction for the respondent no.3 to recover his aforesaid blank cheques thereafter the complaint case regarding the cheque amount has been filed.

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Learned A.G.A. opposes the application and submits that from the contents of the complaint it cannot be said that matter of Section 138 N.I.Act is not made out. The contention raised by

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the applicant relates to disputed questions of fact which can be tested by trial court. Applicant has also opportunity to move discharge application before the Court concerned.

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From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 . The disputed defence of the accused cannot be considered at this stage.

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Considering the facts and circumstances of the case, I do not find any ground to quash the impugned summoning order dated 13.12.2019, therefore, the prayer for quashing the same is hereby refused.

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However, in the interest of justice, it is provided that if the applicant appears and surrenders before the court below within 30 days from today and apply for bail, then the bail application of the applicant be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till the disposal of the application, whichever is earlier, no coercive action shall be taken against the applicants. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

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With the aforesaid directions, this application is finally disposed of.

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Order Date :- 16.6.2020 MAA/-

Murshid v. State of U.P. and 2 Others

Case brief

What is this about?

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Murshid v. State of U.P. and 2 Others

Case brief

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