Dismissed

Mamta Baranwal v. State of U.P. and Another

Allahabad HC12 Apr 2023A482/3923/2023

Case brief

AI extract

What is this about?

In an application under Section 482 Cr.P.C. challenging a summoning and bailable warrant order in a cheque bounced case under Section 138 NI Act, the court dismissed the plea to quash proceedings, holding that disputed facts preclude interference at this stage.

What did the court decide?

Prayer for quashing the summoning order, bailable warrant order and entire proceedings dismissed.

Mamta Baranwal 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. - 3923 of 2023

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Applicant :- Mamta Baranwal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Arvind,Mohammad Khalid Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Manju Rani Chauhan,J.

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Heard Mr. Mohammad Khalid, 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 11.04.2022 and bailable warrant order dated 15.10.2022 as well as the entire proceedings of Complaint Case No.2289 of 2021, under Section 138 of Negotiable Instruments Act, 1881, pending in the Court of the Judicial Magistrate, Court No.1, Jhansi.

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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 as the applicant is the maternal aunt of opposite party no.2 and on 17.12.2018, the applicant came to the house of opposite party no.2 and requested for Rs.4 lacs for construction of house. On the request of applicant, the amount of Rs.4 lacs was given by the opposite party no.2 to him with a condition that the same will be returned by the applicant within one year. Thereafter, when the opposite party no.2 asked the applicant to return the money, the applicant had issued a cheque of Rs.4,00,000/- from Union Bank of India, Branch-Gopiganj, Sant Ravidas Nagar, bearing cheque no.022580 dated 17.12.2020 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 11.02.2021, but the same was dishonoured due to "payment stopped by the drawer" on 12.02.2021. Thereafter, opposite party no.2 sent a legal notice to the applicant on 20.02.2021 through registered post, which has been served upon the applicant on 24.02.2021. After the notice neither any amount was paid nor reply was submitted by the applicant, therefore, the present compliant has been filed on 17.03.2021. Subsequently, the learned Magistrate after recording the statement under Sections 200 and 202 Cr.P.C. summoned the applicant vide order dated 11.04.2022, under

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Section 138 of the Act.

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Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case. He further submits that the opposite party no.2 is the nephew of the applicant and as such, used to visit the home of the applicant regularly and somehow, the signed cheque was stolen by the opposite party no.2 and the same had been misused by him, therefore, the present complaint is not maintainable as per Section 138 of N.I. Act as the said cheque was not towards any existing legally enforceable debt or liability. 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 for cheque being stolen. 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 and 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 11.04.2022 and bailable warrant order dated 15.10.2022 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 :- 12.4.2023 Jitendra/-

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

Mamta Baranwal v. State of U.P. and Another

Case brief

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Mamta Baranwal v. State of U.P. and Another

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