Applicant sought quashing of a summoning order in a Section 138 NI Act complaint, claiming his lost cheque was misused. The Court held that the Section 139 presumption favours the holder and is rebuttable only at trial; mere dispute of liability cannot justify quashing. Application dismissed.
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Neutral Citation No. - 2024:AHC:130848
HIGH COURT OF JUDICATURE AT ALLAHABAD
(Sl No.3)
Court No. - 79
Case :- APPLICATION U/S 482 No. - 11778 of 2024
Applicant :- Ujjawal Dhavan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Kumar Pandey,R.V. Pandey Counsel for Opposite Party :- Ajatshatru Singh,Arun Kumar Singh,G.A.
Hon'ble Anish Kumar Gupta,J.
1. Heard Sri R.V. Pandey, learned counsel for the applicant, Sri Ajatshatru Singh, learned counsel for the opposite party no.2 and Sri Rajiv Kumar Singh, learned A.G.A. for the State.
2. In view of the order dated 16.07.2024, learned counsel for the applicant submits that he doesn't' want to compound the offence, as was submitted on the last date.
3. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the impugned summoning order dated 29.01.2024 in Complaint Case No. 100 of 2024 (Himanshu Kapoor vs. Ujjawal Dhavan) under Section 138 of the Negotiable Instruments Act, 1881 (in short, ' the N.I. Act '), District- Prayagraj, pending in the court of learned Additional Chief Judicial Magistrate-VIth , Prayagraj.
4. Learned counsel for the applicant submits that the cheque in question was lost by the applicant, which has been mis-utilized by the opposite party no.2 and the instant case has been filed on false and fabricated facts. Learned counsel for the applicant further submits that he has no business relation or otherwise with the opposite party no.2, therefore, the instant complaint case is nothing but a malicious prosecution on the part of the opposite party no.2, therefore, he prays for quashing of the entire proceedings of the instant case.
5. Per contra, learned counsel for the opposite party no.2 submits that as per the complaint the cheque in question was issued by the applicant in favour of the opposite party no.2,
which was presented for encashment and which was dishonoured on 01.12.2023 for the reasons "payment stopped by the drawer" . Thereafter, a demand notice dated 07.12.2023 was sent to the applicant herein, however, there was no compliance of the said notice. Thereafter, the instant complaint case under Section 138 of the N.I. was filed. The trial court, after taking note of the facts of the case and considering the relevant documents has found a prima facie case in favour of the opposite party no.2, thereupon, vide order dated 29.01.2024 has summoned the applicant herein for trial. Learned counsel for the opposite party no.2 further submits that once a cheque is issued, presumption shall be drawn under Section 139 of the N.I. Act, in favour of the holder of the cheque that the said cheque was issued by the drawer of the cheque against the due liability or debt. Such presumption is a rebuttable presumption, which can be rebutted by the applicant during trial of the case. Only because the applicant disputes the liability without proving the fact that there was no liability before the trial court the proceedings cannot be quashed in view of the prima facie case found to have been made out in favour of the opposite party no.2
6. Learned A.G.A for State also supports the contentions raised by learned counsel for the opposite party no.2.
7. Having heard the rival submissions made by learned counsels for the parties, this Court has carefully gone through the record of the case. From the perusal of the complaint under Section 138 of the N.I. Act, it is stated in the complaint that the applicant was suffering a business loss and therefore, he requested to the opposite party no.2 for advancement of loan, thereupon, the opposite party no.2 has advanced a loan of Rs. 39,50,000/- to the applicant herein and for repayment of the said loan advanced by the opposite party no.2 the applicant has issued cheques, which were presented for encashment and were dishonored for the reason "payment stopped by drawer ". A legal demand notice was sent, however, the same was not complied, thereupon, the instant complaint case was filed by the applicant herein on 05.01.2024, upon which the trial court has taken cognizance on 29.01.2024, having found a prima facie case made out against the applicant on the basis of the facts alleged in the complaint and the relevant documents produced before the trial court. Once, it is established by the opposite party no.2 that the cheques were issued to the opposite party no.2 belongs to the applicant herein, therefore, a presumption under Section 139 of the N.I. Act shall come into play and it shall be presumed that the said cheques were issued by the applicant in discharge of his liability/debt. However, such presumption is a rebuttable presumption, which can very well be rebutted by the
applicant herein during the trial of the case by leading the cogent evidence before the trial court. Only because the applicant herein disputes the liability or the issuance of cheque the proceedings in the considered opinion of this Court cannot be quashed in exercise of power under Section 482 Cr.P.C. without establishing the fact that there was no liability on the part of the applicant.
8. In view thereof, this Court does not find any good reason to entertain the instant application and the same is accordingly dismissed .
Order Date :- 13.8.2024 Shubham Arya
(Anish Kumar Gupta, J.)
Digitally signed by :- SHUBHAM ARYA High Court of Judicature at Allahabad
1 issue framed by the court
Can a summoning order in a Section 138 NI Act complaint be quashed under Section 482 Cr.P.C. when the drawer disputes liability and claims the cheque was lost and misused?
3 provisions across 2 enactments
Ujjawal Dhavan
State of U.P.
Himanshu Kapoor
Anish Kumar Gupta
As recorded by the court registry
3 orders share this CNR
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