Dismissed

Rajan Tomar v. State of U.P. and Another

Allahabad HC5 May 2023A482/12468/2023

Case brief

AI extract

What is this about?

In an application under Section 482 Cr.P.C. to quash proceedings for cheque dishonour under Section 138 NI Act, the court held that disputes regarding the nature of the transaction are facts to be tried. Inherent powers cannot be exercised to adjudicate these disputes, leading to dismissal.

What did the court decide?

Prayer for quashing the summoning order, non-bailable warrant, and entire proceedings was refused and the application was dismissed.

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

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Court No. - 68

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Case :- APPLICATION U/S 482 No. - 12468 of 2023

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Applicant :- Rajan Tomar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Nripendra Kumar Dwivedi,Prasanna Dwivedi Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Manju Rani Chauhan,J.

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Heard Mr. Nripendra Kumar Dwivedi, learned counsel for the applicant, Mr. K.P. Pathak, 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 22.06.2019 and Non-bailable warrant dated 22.07.2022 as well as the entire proceedings of Criminal Complaint Case No.133 of 2019, (Manoj Gupta vs. Rajan Tomar), under Section 138 of Negotiable Instruments Act, 1881, pending in the Court of the Civil Judge (Junior Division) F.T.C./Judicial Magistrate, Etawah.

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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 applicant purchased jewellery worth Rs.3,07,000/- from the shop of opposite party no.2 and gave a cheque bearing No.00858 dated 15.04.2018 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 16.04.2018, but the same was dishonoured due to " funds insufficient " on 17.04.2018. 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 27.04.2018 through registered post, which has been received by the applicant on 01.05.2018. After the notice neither any amount was paid nor reply was submitted by the applicant, therefore, the present compliant has been filed on 29.05.2018. Subsequently, the learned Magistrate after recording the statement under Sections 200 and 202 Cr.P.C. summoned the applicant vide order dated 22.06.2019, under Section 138 of the Act.

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Learned counsel for the applicant submits that the present

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complaint has been filed with false and frivolous allegations, whereas the real story is that the opposite party no.2 had put up for sale a car on OLX and the applicant approached for the aforesaid purpose and gave a cheque of Rs.3,07,000/- for the purchase of the aforesaid vehicle. Though the aforesaid amount was taken, but the opposite party no.2 assured that the vehicle would be given after two days. After passing of nearly 10 days, when the vehicle was not given and the amount was also not returned, the applicant asked the opposite party no.2 to return the money, therefore, the present cheque was misused for making a false story. He further submits that the present case has been instituted with mala fide intentions, in order to harass and extract money from the applicant. Thus, the summoning order as well as the entire proceedings is liable to be quashed.

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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. Even otherwise, the counsel for the applicant is taking a stand that the cheque has been misused, there being no FIR in this regard. 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;

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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

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complaint cannot be thrown at the threshold. 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 22.06.2019 and Non-bailable warrant dated 22.07.2022. 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 :- 5.5.2023 Jitendra/-

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

Rajan Tomar v. State of U.P. and Another

Case brief

What is this about?

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Rajan Tomar v. State of U.P. and Another

Case brief

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