In an application for quashing of summons under Section 138 NI Act, the applicant claimed payment was made and cheque given as security. The Court held the complaint prima facie disclosed an offence as receipt was denied and dismissed the application.
Application for quashing of summoning order and complaint under Section 138 NI Act dismissed.
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Court No. - 91
Case :- APPLICATION U/S 482 No. - 27737 of 2021
Applicant :- Pooja Gupta Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vipin Chandra Pandey Counsel for Opposite Party :- G.A.,Devashish Tripathi,Sachin Puri
Hon'ble Sameer Jain,J.
Heard Sri V.C. Pandey, learned counsel for the applicant, Sri Devashish Tripathi, learned counsel for opposite party no.2 and Ms. Sushma Soni, learned A.G.A. for the State.
By way of the present application, the applicant has challenged the summoning order dated 10.03.2021 passed by Additional Court No.2, Agra in Complaint Case No. 15216 of 2019 (Dinesh Parihar vs. Smt. Pooja Gupta) under section 138 N.I. Act, Police Station New Agra, District Agra pending in the Court of Additional Court No.2, Agra.
Learned counsel for the applicant submitted that opposite party no.2, on the basis of false facts, filed complaint under section 138 N.I. Act against the applicant. The money in dispute has already been given by the applicant to opposite party no.2 and as the cheque which was signed by the applicant was given to opposite party no.2 as security and instead of returning the cheque, opposite party no.2 submitted it in the bank, therefore, the cheque was dishonoured, therefore, the impugned summoning order as well as complaint under section 138 N.I. Act pending against the applicant is bad.
Learned counsel for the applicant further submitted that as by playing fraud, opposite party no.2 presented the cheque in the bank for which he has already made the payment, therefore, husband of applicant filed a criminal complaint against opposite party no.2 and others on 25.10.2021. Opposite party no.2 along with others has already been summoned. Therefore, on this ground too, the impugned order passed against the applicant and the impugned proceedings pending against the applicant is bad.
Per contra, learned counsel for opposite party no.2 vehemently opposed the prayer and submitted that opposite party no.2 has not received the money and further submitted that the complaint filed by the husband of the applicant has already been stayed by this Court as the proceeding of which was challenged by
opposite party no.2 and this stay order was passed by this Court today. Learned A.G.A. also submitted that the complaint prima facie discloses the offence under section 138 N.I. Act against the applicant and there is no illegality in the summoning order.
I have heard the parties and perused the record.
As opposite party no.2 has specifically denied that he received the amount in dispute and complaint filed by him, prima facie, discloses offence under section 138 N.I. Act against the applicant, therefore, no indulgence, at this stage, is required.
The present application is devoid of merits and is dismissed.
Order Date :- 17.5.2022 Madhurima
Digitally signed by MADHURIMA GARG Date: 2022.05.23 10:40:56 IST Reason: Location: High Court of Judicature at Allahabad
2 issues framed by the court
Whether bail under Section 138 NI Act can be granted prima facie when the accused admits delivery of cheque as security and pays the amount.
Whether a criminal complaint filed by the husband for cheating/fraud affects the maintenance of cheque dishonour proceedings.
1 provisions across 1 enactments
Pooja Gupta
State of U.P.
Sameer Jain
Madhurima Garg
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
