Dismissed

Chandra Mohan v. State of U.P. and Another

Allahabad HC12 Sept 2022A482/19058/2022

Case brief

AI extract

What is this about?

This single judge court dismissed an application to quash criminal proceedings for cheque dishonour under Section 138 NI Act. Relying on Section 139, the court held that the statutory presumption in favor of the payee cannot be discharged in a quashing application and must be rebutted during trial. The procedural argument regarding the bank official's affidavit was also rejected.

What did the court decide?

Application to quash Criminal Complaint Case No. 737 of 2018 was dismissed as devoid of merit.

Chandra Mohan Vs State of U.P. and Another — Cheque Dishonour | Allahabad HC (2022)

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Court No. - 89

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Case :- APPLICATION U/S 482 No. - 19058 of 2022

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Applicant :- Chandra Mohan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajesh Kumar Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Sameer Jain,J.

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Heard Sri Rajesh Kumar Pandey, learned counsel for the applicant and Sri Tanay Kumar, learned AGA, for the State.

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The instant application has been moved on behalf of the applicant with the prayer to quash the entire proceedings of Complaint Case No. 737 of 2018, under Sections 138 of the Negotiable Instruments Act (in short the Act), Police Station Tajganj, District Agra, pending in the court of Additional Chief Judicial Magistrate, Additional Civil Judge(Junior Division), Court No.9, Agra.

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Learned counsel for the applicant submitted that the impugned complaint filed by opposite party no.2 against the applicant under Section 138 of the Act is based on false and frivolous facts and even the affidavit filed by opposite party no.2 is not in accordance with law as in the affidavit filed by opposite party no.2 the contents of some other case has been narrated. He further submitted that although from the perusal of the order sheet it appears that opposite party no.2 was the Bank official but he without obtaining any authorization letter on behalf of the Bank filed impugned complaint which is not permissible but in spite of that court below issued

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summons under Section 138 of the Act to the applicant.

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Per contra, learned AGA submitted that admittedly, the cheque in question was issued by applicant which was dishonoured as he has taken loan from the State Bank of India and opposite party no.2 is admittedly the Bank official, therefore, there is no illegality, if he has filed criminal complaint under Section 138 of the Act on behalf of the Bank.

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Learned AGA further submitted that in the affidavit filed on behalf of opposite party no.2 not even case number has been mentioned and it may be possible that later on case number may be filled by making necessary correction, therefore,on this ground it cannot be said that opposite party no.2 filed his affidavit under Section 200 Cr.P.C.in respect of other case and, therefore, there is no illegality in the summoning order issued against the applicant.

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I have heard learned counsel for both the parties and perused the record of the case.

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The instant impugned complaint was filed by opposite party no.2 against the applicant under Section 138 of the Act.

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As per the allegation made in the impugned complaint, applicant took a loan from the State Bank of India and for repayment of loan, he issued cheque in question which was dishonoured, therefore, it is admitted fact that the cheque was issued by applicant which was when

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presented in the Bank was dishonoured, therefore, from the perusal of the complaint, offence under Section 138 of the Act is made out against the applicant.

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Section 139 of the Act draws a presumption against drawer of the cheque and in favour of payee of the cheque and if there is a presumption then it cannot be discharged by way of filing an application under Section 482 Cr.P.C. at this stage.

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The presumption can only be properly rebutted during the course of trial. The other arguments advanced by the learned counsel for the applicant can not be properly appreciated at this stage as the mini trial is not permissible at this stage.

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In view of the above, the instant application filed on behalf of the applicant is devoid of merit and is hereby dismissed.

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Order Date :- 12.9.2022 SKM

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Digitally signed by SHRAVANA KUMAR MISHRA Date: 2022.09.14 18:52:49 IST Reason: Location: High Court of Judicature at Allahabad

Chandra Mohan v. State of U.P. and Another

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Chandra Mohan v. State of U.P. and Another

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