Dismissed

Shishpal Singh v. State of Up and Another

Allahabad HC14 Nov 2024A227/8349/2024

Case brief

AI extract

What is this about?

Matters under Article 227 petition challenging summoning orders in a cheque dishonour case. The High Court dismissed the petition, holding that the trial and revisional courts correctly applied the test for sufficient ground for proceeding rather than conviction, finding no infirmity in the orders.

What did the court decide?

The petition praying for setting aside the impugned orders is dismissed as it lacks merit.

Shishpal Singh vs State of Up and Another — Cheque Dishonour | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:179551

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Court No. - 85

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Case :- MATTERS UNDER ARTICLE 227 No. - 8349 of 2024

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Petitioner :- Shishpal Singh Respondent :- State of U.P. and Another Counsel for Petitioner :- Bimla Prasad,Ved Prakash Shukla Counsel for Respondent :- G.A.

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Hon'ble Saurabh Srivastava,J.

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Heard learned counsel for the parties.

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Present petition has been preferred with the following prayers:-

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"(i) Issue a direction for setting aside the judgment and order dated 8.4.2024 passed by learned Additional District & Sessions Judge Second, Hapur in Criminal Revision no. 76 of 2022 (Computerized Case no. UPHP010030712022) Shishpal vs. State of U.P. and another contained as Annexure no. 1 to this petition.

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(ii) Issue an order or direction for setting aside the order dated 8.10.2021 passed by learned Judicial Magistrate, First, Hapur in Complaint Case no. 457 of 2021 Ranveer Singh vs. Shishpal Singh filed under Section 138 of the Negotiable Instrument Act of Police Station Babugarh, District Hapur contained as Annexure no. 2 to this petition."

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It is the case of petitioner that petitioner is a property dealer and he used to purchase and sell plots. Respondent no. 2 proposed to purchase a plot being plot no. 14/329 having area of 144 square meter in Vashundhara, Ghaziabad and in this respect he also paid the amount in part to the petitioner. An agreement in this regard was executed between the respondent no. 2 and petitioner as well as previous allottee. There was a dispute pertaining to aforesaid plot since after the death of previous allottee, his power of attorney sold the same plot to some other person and therefore the proposed sale of the plot could not be completed.

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Respondent no. 2 filed a complaint case no. 457 of 2021 under Section 138 of the Negotiable Instruments Act, 1881 with the allegation that amount of Rs. 45 lacs was given gradually in part to the petitioner and petitioner has assured to return the said amount within 5-6 months but he did not returned the said amount and gave a cheque bearing no. 201913 of amount Rs. 45 lacs which was dishonored by the Bank due to insufficient amount when

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respondent no. 2 present the same in the Bank. Upon receiving the complaint learned Magistrate vide order dated 8.10.2021 has summoned the petitioner to face the trial. Being aggrieved with the order dated 8.10.2021, petitioner filed a revision before learned District & Sessions Judge, Hapur but vide order dated 8.4.2024, learned Additional District and Sessions Judge, 2nd, Hapur dismissed the said revision which has been impugned through the instant petition.

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Learned counsel for the petitioner challenged the impugned orders on the ground that the same suffers from grave error of law. Admittedly, there is a relation between petitioner and opposite party no. 2 and the previous deeds executed in the year 2013 in favour of wife of opposite party no. 2 was not disputed and opposite party no. 2 in a very cunning manner suppressed the material facts from the learned court and filed the complaint in respect of transaction to which dispute is pending between the previous allottee and the petitioner and as soon as the dispute with the previous allottee is cleared, the petitioner will be able to get the sale deed executed in favour of opposite party no. 2. The cheque mentioned in the complaint case was given for the purpose of security only and not for presenting it before any Bank.

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Per contra, learned AGA vehemently opposed the prayer sought through the instant petition and supported the orders impugned.

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After hearing the rival submissions extended by learned counsels for the parties and perusing the records, this Court is of the opinion that at the stage of summoning, the Magistrate is only required to record a prima facie opinion, based on the material on record, and is not expected to hold a mini trial or to examine the defence of the accused. In judgment rendered by Hon'ble Apex Court in case of S.W. Palanitkar and Others v. State of Bihar and Another; (2002) 1 SCC 241 it was held that the test which was required to be applied was whether there is "sufficient ground for proceeding" and not whether there is "sufficient ground for conviction" . In the case of Nupur Talwar v. Central Bureau of Investigation and Another; (2012) 11 SCC 465 , it was reiterated that the limited purpose of consideration of material at the stage of issuing process being tentative as distinguished from the actual evidence produced during trial, the test to be applied at the stage was whether the material placed before the Magistrate was "sufficient for proceeding against the accused" and not "sufficient to prove and establish the guilt" .

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The aforementioned legal position has been considered in a

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recent decision of this Court in the judgment dated 6.5.2024 passed in Matters under Article 227 no. 3254 of 2024 (Kailash and another vs. State of U.P. and another).

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None of the grounds raised through the instant petition are convincing enough so as to attract interference of this Court.

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From perusal of the material on record, at this stage, it cannot be said that no offence is made out against the petitioner. The order summoning the accused petitioner passed by the trial court indicates that the same has been passed taking due consideration of the material evidences available on record. The order passed by the court below, issuing process, thus does not suffer from any infirmity so as to warrant interference by this Court. Furthermore, there is no illegality found in the order passed by the revisional court affirming the summoning order of the Magistrate.

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Having regard to the aforesaid, this Court is not inclined to entertain this petition in exercise of its supervisory power under Article 227 of the Constitution of India.

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The petition lacks merit hence stands dismissed accordingly.

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Order Date :- 14.11.2024 Shaswat

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

Shishpal Singh v. State of Up and Another

Case brief

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Shishpal Singh v. State of Up and Another

Case brief

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