Dismissed

Harish Chauhan v. State of U.P. and Another

Allahabad HC22 May 2023A482/12414/2023

Case brief

AI extract

What is this about?

This single-judge bench dismissed an application under Section 482 Cr.P.C. seeking quashing of proceedings under Section 138 NI Act. Rejecting the plea that the proceeding was an abuse of process due to disputed facts and stay orders, the court held that the High Court cannot quash the complaint at the pre-trial stage as dispute of facts requires trial.

What did the court decide?

Application to quash proceedings under Section 138 NI Act is dismissed.

Harish Chauhan Vs State of U.P. and Another — Cheque Dishonour | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:112468

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Court No. - 68

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Case :- APPLICATION U/S 482 No. - 12414 of 2023

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Applicant :- Harish Chauhan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rishabh Agarwal Counsel for Opposite Party :- G.A.,S.C. Dwivedi

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Hon'ble Mrs. Manju Rani Chauhan,J.

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Heard Mr. Rishabh Agarwal, learned counsel for the applicant, Mr. S.C. Dwivedi, learned counsel for the opposite party, 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 entire proceeding of Complaint Case No. 775 of 2019 (Agra Development Authority Vs. Harish Chauhan), under section 138 of the Negotiable Instruments Act, 1881, P.S. Lohamandi, District Agra pending in the court of Additional Court No. 3, Agra.

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Brief facts of the case are that a complaint has been filed on 05.03.2019 against the applicant alleging therein that a contract regarding parking for the Financial year 2018-19 was given by opposite party no. 2. For the aforesaid purpose Cheque No. 100003 of Rs. 29,70,000/- dated 10.01.2019 was given by the applicant to the opposite party no. 2. The aforesaid cheque was presented for encasement before the Bank and the same was rejected on 15.01.2019 with a remark of insufficient fund. Accordingly, a legal notice dated 01.02.2019 was given to the applicant by the opposite party no. 2, which was received on 05.02.2019. After the notice, neither any amount was paid nor reply was submitted by the applicant, therefore, the present compliant has been filed on 05.03.2019 and by order dated 30.07.2019, the applicant has been summoned for committal of offence u/s 138 NI Act.

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Learned counsel for the applicant submits that the aforesaid advance cheque was given pursuant to the contract between the parties and the aforesaid contract was cancelled on 12.02.2019, therefore, the complaint in this regard is not maintainable as after the cancellation there was no debt or liability towards the opposite party no. 2. He further submits that for the said amount the suit for recovery the amount pursuant to the contract between the parties was due upon the applicant. A suit was filed

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by the applicant for declaring the recovering certificate dated 05.10.2020 as illegal and also seeking permanent prohibitory injunction against the opposite party no. 2 from recovering the amount, which was dismissed against which First Appeal No. 494 of 2022 was filed by the applicant in which recovery proceedings against the applicant have been stayed, hence the order vide which a direction has been issued to recovery interim amount is in the teeth of the order passed by the Hon'ble Court, therefore, the same is illegal and not justified in the eyes of law. Counsel for the applicant further placed the order dated 28.03.2023 passed by co-ordinate Bench of this Court in Application U/s 482 No. 5692 of 2023 wherein the matter between the same parties for some other cheque has been referred to the mediation centre. On this ground he states that the present proceedings are nothing but to abuse of process of law and the complaint even otherwise is not maintainable.

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On the other hand, Mr. K.P. Pathak, learned AGA for the State and learned counsel for the opposite party, has submits that the complaint is maintainable in view of ingredients as required under Section 138 N.I. Act. As regards the submissions of counsel for applicant, regarding orders passed, it has been stayed the manner in which the amount is being recovered is not proper and the court has not restrained the authorities to recover the amount in a proper manner. The aforesaid order is an interim order, therefore, cannot be seen at this stage. As regards the order dated 28.03.2023 vide which the applicant has been referred to mediation centre, counsel for the opposite party as well as learned AGA states that the aforesaid matter has been referred without being consent of opposite party and in the present matter the opposite party is not ready and willing to mediate. He next submits that as per Section 143A- It empowers the Court to order the drawer of the cheque to pay Interim Compensation to the complainant, therefore, the relief cannot be granted and 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;

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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;

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iv) Basalingappa Vs. Mudibasappa reported in (2019) 5 SCC 418;

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v) Kishan Rao Vs. Shankargouda, (2018) 8 SCC 165;

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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 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, the prayer for quashing the entire proceedings of the aforesaid case are refused, as I do not see any abuse of the court's process at this

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pre-trial stage.

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

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Order Date :- 22.5.2023 Arti

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Digitally signed by :- ARTI SHARMA High Court of Judicature at Allahabad

Harish Chauhan v. State of U.P. and Another

Case brief

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Harish Chauhan v. State of U.P. and Another

Case brief

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