Dismissed

Gulzar Ahmad Khan @ Gulzar Khan v. State of U.P. and 7 Others

Allahabad HC25 Apr 2023A482/12022/2023

Case brief

AI extract

What is this about?

In an application u/s 482 Cr.P.C. seeking quashing of proceedings u/s 138 N.I. Act, the High Court held that since disputed questions of fact exist and the applicant failed to show willingness to deposit the admitted amount, the inherent power to quash could not be exercised, leading to the dismissal of the application.

What did the court decide?

Application to quash the summoning order dated 04.02.2020 and entire criminal proceedings was refused and dismissed.

Gulzar Ahmad Khan @ Gulzar Khan Vs State of U.P. and 7… — Cheque Dishonour | Allahabad HC (2023)

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Court No. - 68

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Case :- APPLICATION U/S 482 No. - 12022 of 2023

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Applicant :- Gulzar Ahmad Khan @ Gulzar Khan Opposite Party :- State Of U.P. And 7 Others Counsel for Applicant :- Arun Kumar Gupta Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Manju Rani Chauhan,J.

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Heard Mr. Sumit Pandey, Advocate holding brief of Mr. Arun Kumar Gupta, learned counsel for the applicant, Mr. Pankaj Srivastava, learned AGA for the State and perused the records.

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The present application under Section 482 Cr.P.C. has been filed to quash the summoning order dated 04.02.2020 as well as the entire proceedings of Criminal Complaint Case No.2931 of 2018, (Kallan Khan vs. Gulzar Ahmad Khan), under Section 138 of Negotiable Instruments Act, 1881, pending in the Court of the Additional Chief Judicial Magistrate-II, District-Shahjahanpur.

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Brief facts of the case are that the opposite party no.2 filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') against the applicant stating therein that the opposite party no.2 had agreed to sell certain property to the applicant and to the persons as informed by the applicant, for which Rs.1,00,000/- was already paid by the applicant, however, remaining amount of Rs.3,85,000/- was assured to be given by the applicant to the opposite party no.2 after sometime. Believing the applicant, the property in question was sold to the persons as directed by the applicant. For the amount of Rs.3,85,000/- as agreed between the parties, the applicant had issued a cheque of Rs.3,85,000/- from Axis Bank, BranchShahjahapur, bearing cheque no.049675 dated 20.07.2018 in favour of opposite party no.2. On receipt of the same, opposite party no.2 has presented the same before the concerned Bank for encashment on 21.07.2018, but the same was dishonoured due to "funds insufficient" on 21.07.2018. The aforesaid information was given to the applicant by the opposite party no.2, but the applicant refused to return the amount as taken by him from the opposite party no.2. Thereafter, opposite party no.2 sent a legal notice to the applicant on 25.07.2018 through registered post, which has been received by the applicant on 26.07.2018. After the notice neither any amount was paid nor reply was submitted by the applicant, therefore, the present compliant has been filed on 23.08.2018.

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Subsequently, the learned Magistrate after recording the statement under Sections 200 and 202 Cr.P.C. summoned the applicant vide order dated 04.02.2020, under Section 138 of the Act.

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Learned counsel for the applicant submits that the complaint was filed by Kallan Khan, who is now deceased and his legal heirs are pursuing the case, who are already pleaded before the court below. He further submits that the applicant is ready and willing to pay the amount, therefore, the matter is referred to the Mediation Centre as the parties may get the opportunity to settle their dispute.

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On the other hand, Mr. K.P. Pathak, learned AGA for the State, has submitted that the summoning order passed by the concerned Magistrate is legal and just in the eyes of the law and at this stage, only a prima facie case is to be seen and the complaint cannot be thrown at the threshold. Therefore, the present application is liable to be dismissed.

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I have carefully considered the submissions advanced by learned counsel for the parties and have also gone through the material available on record.

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Before proceedings further, it is apposite to give reference of some judgments of the Apex Court as well as this Court, wherein the Apex Court has laid down the guideline for quashing of criminal proceedings arising out of Section 138 of N.I. Act, which are as follows:-

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i) C.C. Alavi Haji Vs. Palapetty Muhammed and Another, reported in (2007) 6 SCC 555; ii) Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah, reported in 2014 12 SCC 685;

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iii) Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Pyarelal, reported in (1999) 3 SCC 35; iv) Basalingappa Vs. Mudibasappa reported in (2019) 5 SCC 418;

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v) Kishan Rao Vs. Shankargouda, (2018) 8 SCC 165; vi) Ranjit vs. State of U.P. and another decided on 31.01.2020 passed in Application U/s 482 No. 47282 of 2019.

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In view of the settled legal position, as noticed above, it is clear that at this stage, only a prima facie case is to be seen and the complaint cannot be thrown at the threshold. This Court feels that the amount in question is admitted by the applicant, hence for sending the matter before the mediation centre, when specific query was raised to the learned counsel for the applicant as to what

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amount he is ready and willing to deposit, he could not answer, which shows that he does not have any intention to deposit any amount. All the submissions made by learned counsel for the applicant is disputed questions of fact. Therefore, when the facts have to be established by way of evidence, this Court while exercising the powers under section 482 of Cr.P.C., cannot interfere with such proceedings.

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It is well settled that for the purpose of quashing of a complaint, the High Court cannot look into the defence of the accused. The Court is only required to see whether on the basis of the averments made in the complaint and the relevant particulars produced by the complainant, there are grounds for proceeding against the accused. Inherent power of quashing criminal proceedings U/s 482 Cr.P.C. should be exercised very sparingly and with great circumspection. It does not confer on the court to act arbitrarily as per its own whims and caprice. At this stage, the Courts could not have gone into the merits and reached a conclusion that there are no existing debt or liability and quash the complaint. Therefore, the basic law is that the complaint under Section 138 of Negotiable Instrument Act cannot be quashed by High Court by taking recourse to Section 482 Cr.P.C, if disputed questions of facts are involved which need to be adjudicated after respective evidence is led by the parties before the trial court

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On the basis of discussions made herein above, this Court finds that there is no illegality or infirmity in the summoning order dated 04.02.2020 passed by the concerned court below. Therefore, the prayer for quashing the impugned summoning order as well as the entire proceedings of the aforesaid case are refused, as I do not see any abuse of the court's process at this pre-trial stage.

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In view of the aforesaid, the application is, accordingly, dismissed .

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Order Date :- 25.4.2023 Jitendra/-

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Digitally signed by :- JITENDRA KUMAR YADAV High Court of Judicature at Allahabad

Gulzar Ahmad Khan @ Gulzar Khan v. State of U.P. and 7 Others

Case brief

What is this about?

What did the court decide?

Gulzar Ahmad Khan @ Gulzar Khan v. State of U.P. and 7 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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