Dismissed

Ram Singh Yadav v. State of U.P. and Another

Allahabad HC15 May 2023A482/43796/2022

Case brief

AI extract

What is this about?

The High Court entertained an application under Section 482 of the Cr.P.C. seeking to quash a summoning order and proceedings under Section 138 of the Negotiable Instruments Act. The court held that disputed factual issues, including signature discrepancies, must be resolved during trial by trial courts, not via inherent powers. The application was dismissed.

What did the court decide?

The prayer to quash the summoning order and entire proceedings was refused and the application was dismissed.

Ram Singh Yadav Vs State of U.P. and Another — Cheque Dishonour | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:104197

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Court No. - 68

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Case :- APPLICATION U/S 482 No. - 43796 of 2022

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Applicant :- Ram Singh Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shiv Kumar Singh,Prakash Chandra Gupta

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Counsel for Opposite Party :- G.A.,Yatish Kumar Dwivedi

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Hon'ble Mrs. Manju Rani Chauhan,J.

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1. Heard learned counsel for the applicant, Sri K.P. Pathak, learned A.G.A. for the State and Sri Yatish Kumar Dwivedi, learned counsel appearing for opposite party no. 2.

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2. This application under Section 482 Cr.P.C. has been filed by the applicant challenging the summoning order dated 13.10.2021 passed by the Judicial Magistrate-I, Mahoba in Complaint Case No. 660 of 2021 (Sri Dayal Verma v. Ram Singh Yadav), under Section 138 of the Negotiable Instruments Act, 1881, Police Station Kotwali, District Mahoba.

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3. Brief facts of the case are that a complaint has been filed on 13.10.2021 by the opposite party no. 2 alleging therein that the applicant was known to him as they were working in same department, therefore, became friends. The applicant assured opposite party no. 2 to provide job to his son in case he gives an amount of Rupees Ten Lakh. He gave Rs. 10 Lakh to the applicant. After passage of some time neither any job was provided nor money was returned by the applicant. The opposite party no. 2 requested the applicant to return his money, thereupon the applicant gave Cheque No. 941547 (Account No. SSB 31226796161) of Rs. 10 Lakh to the opposite party no. 2. The said cheque was presented for encashment on 16.08.2021 and the same was returned on 18.08.2021 with the remark "payment stopped". The said information was given by opposite party no. 2 to the applicant, however, he neither returned the money nor gave any satisfactory reply. Thereafter, a registered notice was sent on 13.09.2021, and within fifteen days of the same, neither any amount was returned nor any reply was submitted, therefore, the aforesaid complaint was filed, in which the applicant has been summoned, hence the instant application.

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4. Learned counsel for the applicant submits that legal notice mentions that the date of complaint is 13.10.2021. To

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emphasize upon the receipt, he states 13.10.2021 is date mentioned in the complaint, but the registered acknowledgement mentions the date as 16.09.2021, therefore, the complaint is pre-matured hence not maintainable. He further disputed the signatures on the cheque, therefore, the complaint is not maintainable and the same may be quashed.

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5. Learned counsel for the opposite party no. 2, however, submits that the order impugned has been passed in consonance with the provisions of the Negotiable Instruments Act, 1881. To the submission regarding disputing signatures, he submits that it is disputed question of fact and the difference in signature of the applicant in the cheque very well makes out the offence under Section 138 N.I. Act as the Apex Court in the case of Messrs. Laxmi Dyechem vs. State of Gujarat and others , (2012) 13 SCC 375 has held that any such technical reason or endorsement of Bank for dishonour of cheque does not affect/disqualifies the prosecution under Section 138 N.I. Act and would constitute the offence under Section 138 N.I. Act. He further submits 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. He further submits that in case, cheque is disputed, the same can be seen at the time of trial. Therefore, the present application is liable to be dismissed.

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6. 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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7. Before proceeding 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, in the cases of C.C. Alavi Haji v. Palapetty Muhammed and Another , (2007) 6 SCC 555; Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah , (2014) 12 SCC 685; Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal , (1999) 3 SCC 35; Basalingappa v. Mudibasappa , (2019) 5 SCC 418; Kishan Rao v. Shankargouda , (2018) 8 SCC 165 and, in the case of Ranjit v. State of U.P. and another , Application U/s 482 No. 47282 of 2019, decided on 31.01.2020.

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8. The law regarding the issue where drawer's signature was incomplete or difference in signature has been dealt by the Apex Court in the case of Laxmi Dyechem Vs. State of Gujrat and others, (2012) 13 SCC 375 , wherein it has been

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held that in case the cheque has been dishonoured on account of "drawer's signature differs", it shall also be a punishable offence and attract criminal proceedings under Section 138 of the N.I. Act.

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9. 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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10. 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 under Section 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 Court 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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11. Even otherwise this Court finds that the applicant is trying to avoid payment and facing trial, as initially when the matter was taken up on 18.04.2023, following order was passed:

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"Heard Mr. Prakash Chandra Gupta, learned counsel for the applicant, Mr. Yatish Kumar Dwivedi, learned counsel for the opposite party no.2 and Mr. Amit Singh Chauhan, learned AGA for the State.

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Learned counsel for the parties submits that there are fair chances of mediation between the parties, therefore, the matter may be referred to mediation centre. In order to show his bona fide, the applicant is ready to deposit an amount of Rs.100,000/- in favour of opposite party no.2, Sridayal Verma on the next date fixed.

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In view of the above, learned counsel for the applicant is expected to bring a Demand Draft of Rs.100,000/- in favour of opposite party no.2, Sridayal Verma on the next date fixed, i.e. 05.05.2023, for showing his bona fide.

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Put up, as fresh, on 05.05.2023 for further hearing.

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Till then, no coercive action shall be taken against the applicant in Complaint Case No.660 of 2021 (Sri Dayal Verma vs. Ram Singh Yadav), under Section 138 N.I. Act, Police Station-Kotwali, District-Mahoba."

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12. On previous occasion i.e. 05.05.2023 on the request of learned counsel for the applicant following order was passed:

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"Mr. Shiv Kumar Singh, learned counsel for the applicant states that due to municipal elections (Nikay Chunav), the applicant could not come up with a draft of Rs.1 lac, therefore, some time may be granted for compliance of the earlier order.

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As prayed, put up this case on 15.05.2023 at 10:00 a.m., as fresh, for compliance of earlier order dated 18.04.2023.

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Interim order granted earlier is extended till the next date of listing."

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13. Today, learned counsel for the applicant submits that applicant could not be contacted. Such practice of a litigant wastes the precious time of this Court.

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14. On the basis of discussions made herein above, this Court finds that there is no illegality or infirmity in the summoning order dated 13.10.2021 passed by the Judicial Magistrate-I, Mahoba in Complaint Case No. 660 of 2021 (Sri Dayal Verma v. Ram Singh Yadav), under Section 138 of the Negotiable Instruments Act, 1881, 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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15. In view of the aforesaid, the application is, accordingly, dismissed.

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Order Date :- 15.5.2023 DS

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Digitally signed by :- DIGAMBER SINGH High Court of Judicature at Allahabad

Ram Singh Yadav v. State of U.P. and Another

Case brief

What is this about?

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Ram Singh Yadav v. State of U.P. and Another

Case brief

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What did the court decide?

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