Dismissed

Smt. Minakshi and Another v. State of U.P. and Another

Allahabad HC8 May 2023A482/34754/2022

Case brief

AI extract

What is this about?

In a Section 482 application to quash a summoning order for cheque bounce, the Court held that the existence of disputed facts precludes interference at the threshold. The Court refused to examine the merits of the debt dispute and dismissed the application, noting the High Court cannot look into defenses at this stage.

What did the court decide?

Application seeking quashing of the summoning order dated 25.10.2021 and the revision order dated 03.09.2022 was refused and application dismissed.

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

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Neutral Citation No. - 2023:AHC:98763

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Court No. - 68 Case :- APPLICATION U/S 482 No. - 34754 of 2022 Applicant :- Smt. Minakshi And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Laxmi Kant Bhatt Counsel for Opposite Party :- G.A.,Anil Kumar Mishra,Raj Kumar Singh,Rishi Shrivastava

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Hon'ble Mrs. Manju Rani Chauhan,J.

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As consented by the parties, the matter is being heard finally on merit.

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Heard Mr. Laxmi Kant Bhatt, learned counsel for the applicants, Mr. Raj Kumar Singh, Advocate assisted by Mr. Rajat Aren, learned counsel for the opposite party no.2, 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 25.10.2021 in Complaint Case No.1627 of 2021 (Sansarwati vs. Minakshi & another), under Section 420 IPC and Section 138 of N.I. Act as well as the judgment and order dated 03.09.2022 passed by learned Additional Session Judge, Court No.15, Meerut in Criminal Revision No.108 of 2022 (Smt. Minakshi vs. State of U.P. and another), Police Station-Medical, District-Meerut.

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Brief facts of the case are that the opposite party no.2 filed a complaint on under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') against the applicants stating therein that the applicants are daughter and son-in-law of opposite party no.2. The opposite party no.2 retired from the post of Health Visitor in June, 2016 and received an amount of Rs.30,00,000/- as gratuity and provident fund. When the applicants came to know about the aforesaid, they requested the opposite party no.2 to pay Rs.18,00,000/- as they want to purchase some plot and assurance was also given by the applicants that the aforesaid amount shall be returned as soon as possible. On their assurance, the opposite party no.2 had given the amount in the account of applicant no.2; Vinod Kumar Katariya, through RTGS of Rs.10,00,057/- bearing Cheque No.201711 dated 25.03.2017 and Rs.8,00,059/- bearing Cheque No.201714 dated 18.10.2017. After passage of sometime, when the opposite party no.2 was need of money, she requested the applicants to return the aforesaid amount and inspite of repeated request nothing was done. A complaint in this regard was made before the senior police officials also. On the aforesaid complaint, the mediation was carried out between the parties at the police station where the applicants agreed to

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pay an amount of Rs.14,00,000/- to the opposite party no.2. In view of the aforesaid settlement between the parties, the applicant no.2 had issued two cheques of Rs.2,00,000/- and Rs.6,00,000/- from Corporation Bank, Branch-Jaban, Dehradun, bearing cheque nos.019971 and 019972 dated 25.10.2020 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 31.12.2020, but the same was dishonoured due to "payment stopped by drawer" on 01.01.2021. Thereafter, opposite party no.2 sent a legal notice to the applicants through registered post, which has been received by the applicants. After the notice neither any amount was paid nor reply was submitted by the applicant, therefore, the present compliant has been filed on 01.02.2021. Subsequently, the learned Magistrate after recording the statement under Sections 200 and 202 Cr.P.C. summoned the applicant vide order dated 25.10.2021, under Section 138 of the Act.

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Learned counsel for the applicant submits that the present complaint is not maintainable as per Section 138 of N.I. Act as the same has not been filed within 30 days of service of notice upon the applicants. He further submits that the present case has been instituted with mala fide intentions, in order to harass and extract money from the applicants. 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. The submission raised by the learned counsel for the applicants is not accepted as the complaint is within time even otherwise as per law. 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

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12 SCC 685; 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. 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 25.10.2021 as well as the order dated 03.09.2022 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 :- 8.5.2023 Jitendra/-

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

Smt. Minakshi and Another v. State of U.P. and Another

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Smt. Minakshi and Another v. State of U.P. and Another

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