Held an application under Section 482 Cr.P.C. seeking quashing of summons in a cheque dishonour case. The High Court found no illegality in the summoning order as factual disputes regarding theft and liability require trial evidence.
Application under Section 482 Cr.P.C. dismissed without merits.
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Court No. - 75
Case :- APPLICATION U/S 482 No. - 48060 of 2019
Applicant :- Saleem Opposite Party :- State of U.P. and Another Counsel for Applicant :- Awadhesh Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the applicant, learned A.G.A. and perused the record.
The present application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 24.12.2018 as well as entire criminal proceedings of Complaint Case No. 363 of 2018 i.e. Computer No. 3901 of 2018 (Raheesa Vs. Salim), under Section 138 of N.I. Act, P.S. Masoori, DistrictGhaziabad, pending in the court of Addl. Civil Judge (Sr.D.), Court No. 3, Ghaziabad.
As per the allegations made in the complaint, it is alleged that the applicant has issued a Cheque No. 000062 for an amount of Rs. 10,00,000/- to Opposite Party No.2, however, on presentation of the said cheque, the same was dishonoured by the bank and returned back. After the dishonour of the cheque, a notice was sent to the applicant to make good the payment however, despite being noticed the due amount was not paid as such, the present complaint u/s 138 of N.I. Act has been filed.
On the basis of allegations made in the complaint and after taking into consideration the documents filed by the opposite party no. 2 and the affidavit in support of the allegations, learned Magistrate had summoned the applicant to face trial under Section 138 of Negotiable Instrument Act vide order dated 24.12.2018. Pursuant to the said order dated 24.12.2018, the applicant did not appear before the court below and as such non bailable warrant was issued against the applicant vide order dated 13.11.2019.
Learned counsel for the applicant has submitted that the cheque in question infact has been stolen by the opposite party no. 2 and no due debt or liability exists, therefore, proceedings u/s 138 of N.I. Act cannot be drawn against the applicant.
Per contra, learned A.G.A. has supported the impugned order and has submitted that learned Magistrate on the basis of allegation made in the complaint and after making the requisite
enquiry under Sections 200 and 202 CrPC, has summoned the applicant to face trial under Section 138 of Negotiable Instrument Act vide order dated 24.12.2018 and there is absolutely no illegality or infirmity in the impugned order. Moreover, the disputed question whether the cheque in question has been stolen and whether any due debt or liability exists can not be considered at this stage when the evidence is yet to come, as such impugned order passed by the courts below does not suffer from any illegality or infirmity.
Having considered the rival submissions made by the counsel for the parties and taking into consideration the fact that the learned Magistrate on the basis of allegation made in the complaint and after making the requisite enquiry under Sections 200 and 202 CrPC, has summoned the applicant to face trial vide order dated 24.12.2018. Moreover, the disputed question whether the cheque in question has been stolen and whether any due debt or liability exists cannot be considered at this stage when the evidence is yet to come, as such the impugned order is just, proper and legal and do not call for any interference at this stage.
The present application u/s 482 is devoid of merit and is accordingly dismissed.
Order Date :- 3.1.2020 KU
2 issues framed by the court
Whether the criminal proceedings under Section 138 of the Negotiable Instruments Act warrant quashing on the prima facie ground that the cheque was allegedly stolen.
Whether questions of fact regarding theft and lack of underlying liability can be adjudicated at the stage of summary dismissal under Section 482 Cr.P.C.
3 provisions across 2 enactments
Saleem
State of U.P.
Raheesa
Rajiv Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
