Application to quash summoning order and proceedings in a Section 138 NI Act complaint on grounds of no prima facie case was refused; the Court held allegations were corroborated by sworn statements under Sections 200 and 202 CrPC and adjudication of facts belongs to the trial court.
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Neutral Citation No. - 2024:AHC-LKO:77369
Court No. - 14
Case :- APPLICATION U/S 482 No. - 10526 of 2024
Applicant :- Rajesh Kumar Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Applicant :- Ashok Kumar Pal Counsel for Opposite Party :- G.A.
Hon'ble Ajai Kumar Srivastava-I,J.
1. Heard learned counsel for the applicant and learned A.G.A. for the State.
2. The instant application under Section 482 Cr.P.C. has been filed for quashing the entire proceeding of Complaint Case No.86046 of 2023, Smt. Phulmara vs. Rajesh Kumar, under Section 138 N.I. Act, pending before the Additional Court No.5, Lucknow as well as impugned order dated 06.11.2024.
3. Learned counsel for the applicant has submitted that the impugned summoning order dated 06.11.2024 is not in conformity with the averments made in the complaint filed against the applicant. He also submits that even no prima facie case is disclosed against the applicant, however, learned Judicial Magistrate without applying his judicial mind passed the impugned summoning order. Thus, that even prima facie no offence is disclosed against the applicant, despite this fact, he has been summoned to face the trial which is nothing but malicious prosecution and an abuse of the process of the Court.
4. Per contra, learned A.G.A. has submitted that this is not a stage where minute and meticulous exercise with regard to the appreciation of evidence may be done and truthfulness of the allegations could only be tested in a criminal trial. At this initial stage, the fact of innocence of the applicant can also not be determined.
5. Learned A.G.A. further submits that the sufficiency of the material and the test to be applied at the stage of issue of process has been considered in the case of Nupur Talwar v. Central Bureau of Investigation and Another reported in (2012) 11 SCC 465 , wherein it has been reiterated that 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".
6. He has also drawn attention of this Court to a recent judgment rendered by Hon'ble Supreme Court in CBI v. Aryan Singh, 2023 SCC OnLine SC 379 , wherein it has been held that as per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. At the stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has a very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused
for which the accused is required to be tried or not".
7. On the basis of the aforesaid, he submits that no interference with the impugned summoning order and proceedings is warranted at this stage and, therefore, the application is misconceived and is liable to be dismissed.
8. Having heard learned counsel for parties and upon perusal of the records including the impugned summoning order dated 06.11.2024, it transpires that the allegations in the complaint have been found to be duly corroborated by the statement made on oath by the complainant during the course of examination under Section 200 Cr.P.C. and also the statements of witnesses recorded during inquiry made by the learned Magistrate under Section 202 Cr.P.C.. The impugned order has been passed referring the aforesaid statements recorded under Section 200 Cr.P.C. and under Section 202 Cr.P.C. and only thereafter, impugned summoning order has been passed. Therefore, at this initial stage, no ground for quashing the impugned summoning order and the proceedings of aforesaid case is made out.
9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction
can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. In this regard reference may be made to a judgment rendered by Hon'ble Supreme Court in Dy. Chief Controller of Imports & Exports v. Roshanlal Agarwal, (2003) 4 SCC 139.
10. Hon'ble Supreme Court in U.P. Pollution Control Board v. Mohan Meakins Ltd., (2000) 3 SCC 745 has categorically held that while issuing process, the Magistrate must not anticipate the decision Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of inquiry.
11. In Chandra Deo Singh v. Prokash Chandra Bose, 1963 SCC OnLine SC 4 Hon'ble Supreme Court has held that whether evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of inquiry.
12. Having regard to the aforesaid settled legal position, this Court is of the considered view that the grounds which have been taken to quash the impugned order dated 06.11.2024 call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and
therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. Therefore, this Court does not find any justification to quash the proceedings against the applicant as the case does not fall in any of the categories recognized by Hon'ble the Supreme Court which may justify their quashing.
13. Accordingly, prayer of quashing the impugned summoning order dated 06.11.2024 and proceedings emanating therefrom is hereby refused.
14. However, it is needless to mention that in case the applicant applies for bail, the learned trial Court concerned shall consider and decide the same expeditiously, in accordance with law laid down by the Hon'ble Supreme Court in Satender Kumar Antill Vs. Central Bureau of Investigation and others : MANU/SC/1024/2021.
15. In view of the aforesaid observations, the instant application under Section 482 Cr.P.C. is finally disposed of .
(Ajai Kumar Srivastava-I, J.) Order Date :- 22.11.2024 A.Dewal
Digitally signed by :- ASHISH DEWAL High Court of Judicature at Allahabad, Lucknow Bench
1 issue framed by the court
Whether the summoning order dated 06.11.2024 in the Section 138 NI Act complaint should be quashed under Section 482 CrPC for lack of judicial mind and prima facie case.
Colour shows how this judgement treated each authority
Nupur Talwar v. Central Bureau of Investigation and AnotherRelied on¶5
(2012) 11 SCC 465 · Who else cites this
CBI v. Aryan SinghRelied on¶6
2023 SCC OnLine SC 379 · Who else cites this
Dy. Chief Controller of Imports & Exports v. Roshanlal AgarwalRelied on¶9
(2003) 4 SCC 139 · Who else cites this
U.P. Pollution Control Board v. Mohan Meakins Ltd.Relied on¶10
(2000) 3 SCC 745 · Who else cites this
Chandra Deo Singh v. Prokash Chandra BoseRelied on¶11
1963 SCC OnLine SC 4 · Who else cites this
Satender Kumar Antill Vs. Central Bureau of Investigation and othersReferred¶14
MANU/SC/1024/2021
4 provisions across 2 enactments
Rajesh Kumar
State Of U.P. Thru. Prin. Secy. Home Deptt. Lko.
Smt. Phulmara
Ajai Kumar Srivastava-I
As recorded by the court registry
2 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
