Dismissed

Vijay Kumar Shakya v. State of U.P. and Another

Allahabad HC29 Sept 2022A482/26279/2022

Case brief

AI extract

What is this about?

In this Section 482 CrPC application filed under Section 138 of the Negotiable Instruments Act, the applicant sought to quash a complaint and summoning order alleging issuance of a dishonored cheque. The court rejected arguments that the cheque was invalid due to technical banking conditions or non-existence of the transaction, holding these as matters of fact for the trial court.

What did the court decide?

The application for quashing the complaint and the summoning order under Section 482 CrPC was dismissed as devoid of merit.

Vijay Kumar Shakya 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. - 26279 of 2022

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Applicant :- Vijay Kumar Shakya Opposite Party :- State of U.P. and Another Counsel for Applicant :- Narayan Singh(Kushwaha) Counsel for Opposite Party :- G.A.

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Hon'ble Sameer Jain,J.

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Heard Sri Narayan Singh (Kushwaha), learned counsel for the applicant and Dr. S.B. Maurya, learned AGA-I for the State.

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By way of present application, applicant made a prayer to quash the Complaint Case No. 2929 of 2021 as well as order dated 11.05.2022, under Section 138 N.I. Act, Police Station Mirhachi, District Etah pending in the court of Chief Judicial Magistrate, Etah.

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Learned counsel for the applicant submitted that the impugned complaint has been lodged by opposite party no.2 under Section 138 N.I. Act on the basis of false and frivolous allegation, in fact applicant never issued any cheque to him. He further submitted that there is no liability pending against the applicant, therefore, there was no question could arise to issue the cheque to opposite party no.2. He further submitted that opposite party no.2 actually is resident of same village and due to the enmity of election of village Pradhan he anyhow procured the cheque of applicant and submitted the same in the bank. He further submitted that even on the technical ground the complaint under Section 138 N.I. Act is bad as from the perusal of the reply of the bank with regard to the dishonor of the cheque it appears that cheque was dishonored due to the condition that it was Non CTS Cheque and it was not is use, therefore, it could not be honored but in spite of that applicant has been summoned in the present matter.

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Per contra, learned AGA submitted that from the perusal of the complaint, it appears that applicant issued cheque in favour of opposite party no.2 and when opposite party no.2 presented the same in the Bank then the cheque was dishonored, therefore, it cannot be said that there is illegality in the summoning order dated 11.05.2022. Learned AGA further submitted that from the perusal of the reply of the bank with regard to the dishonor of the cheque it is apparent that cheque was dishonored due to insufficient fund and although in the bottom of the same, bank has mentioned that cheque was Non CTS Cheque but this fact cannot be ascertained at this stage. There is report regarding

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dishonor of the cheque due to insufficient fund, therefore, applicant cannot claim that no offence under Section 138 N.I. Act is made out, therefore, instant application is liable to be dismissed.

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

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From the perusal of the record, it appears that opposite party no.2 moved a criminal complaint against applicant under Section 138 N.I. Act. From the perusal of the complaint, it appears that applicant issued cheque to opposite party no.2, which was dishonored when he presented the same in the bank. The argument of learned counsel for the applicant is two folds:-

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(i) cheque has never been issued to opposite party no.2 as there was no liability pending against the applicant and the cheque in question was anyhow procured by opposite party no.2 due to election enmity and after procuring the same he presented the same in the bank but this argument cannot be appreciated by this Court at this stage as defence taken by accused cannot be appreciated at this stage, it can only be appreciated by the trial court during the course of trial.

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(ii) learned counsel for the applicant vehemently submitted that he tried to obtain reply from the bank concerned regarding dishonor of the cheque and bank concerned specifically provided reply to the applicant that the cheque was dishonored due to the reason that it was Non CTS Cheque and it was not dishonored due to insufficient fund and somebody wrongly with malafide intention put tick mark over the column of insufficient fund but this fact too cannot be appreciated at this stage by this Court as it is a question of fact and correctness of the report/reply submitted by the bank to applicant can only be ascertained by the trial court during the course of trial.

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As from the perusal of the complaint prima facie offence under Section 138 N.I. Act is made out against the applicant, therefore, there is no illegality in the summoning order issued against applicant.

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Accordingly, the instant application being devoid of merits is hereby dismissed.

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Order Date :- 29.9.2022 AK Pandey

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Digitally signed by ANUPAM KUMAR PANDEY Date: 2022.10.10 18:56:40 IST Reason: Location: High Court of Judicature at Allahabad

Vijay Kumar Shakya v. State of U.P. and Another

Case brief

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Vijay Kumar Shakya v. State of U.P. and Another

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