Application under Section 482 CrPC seeking to quash summoning order in a cheque dishonour case dismissed. Court held that the existence of legal liability is presumed under Section 139 of the NI Act, and the defence of prior repayment is a matter of evidence to be raised during trial, not grounds for quashing at the summoning stage.
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Neutral Citation No. - 2024:AHC:115984
HIGH COURT OF JUDICATURE AT ALLAHABAD
(Sl No.20)
Court No. - 79
Case :- APPLICATION U/S 482 No. - 17000 of 2024 Applicant :- Sh Varun Aggarwal Opposite Party :- State Of Up Another Counsel for Applicant :- Kaushal Kumar Singh,Kaushalendra Nath Singh Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J.
1. Heard Sri Rajeshwar Singh, counsel holding brief of Sri Kaushal Kumar Singh, learned counsel for the applicant and Sri Rajiv Kumar Singh, learned A.G.A. for the State.
2. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the summoning order dated 09.02.2024 in Complaint Case No. 19 of 2024 (Pravesh Kumar vs. Varun Aggarwal), u/S 138/141 of the Negotiable Instruments Act, 1881 (in short, ' the N.I. Act '), P.S.- Kavi Nagar, District- Ghaziabad, pending in the court of learned Civil Judge (Jr. Division)/Fast Track Court/ Judicial Magistrate, Ghaziabad.
3. Learned counsel for the applicant submits that cheques in question were admittedly issued by the applicant as a security cheque for the purpose of repayment of the amount in terms of an agreement dated 20.06.2018, executed between the parties. Learned counsel for the applicant further submits that after the execution of the said agreement, the entire payment has already been made, however, learned counsel for the opposite party no.2 has mis-utilized the aforesaid cheques and the instant complaint case has been filed. Therefore, he has prayed for quashing of the entire proceedings of the instant case.
4. Per contra, learned A.G.A. submits that the applicant has not disputed the execution of the agreement dated 20.06.2018. From the aforesaid it is clear that there was a liability on the part of the applicant to pay an amount of Rs. 12,00,000/- to the opposite party no.2 and in pursuance thereof, the agreement was executed and the cheques in questions were handed over to the opposite party no.2, to ensure the repayment of the aforesaid amount. Since, the applicant has failed to make the payment of
the aforesaid amount within the stipulated period, the opposite party no.2 in exercise of its right under the agreement has utilized the said cheques by carrying on the alterations with regard to name, date and amount on the said cheques, in terms of the Section 87 of the N.I. Act, thereafter, the instant cheques were presented, which got dishonored, thereupon, the instant complaint case under Section 138 of the N.I. Act was filed. Therefore, there was admission of liability in the agreement dated 20.06.2018 and once the cheques have been issued, otherwise also it shall be presumed that the said cheques were issued in discharge of the legal liability or debt. The submission of the applicant that after the issuance of cheque the payments were already made, is the subject matter of proof to rebut the said presumption, which can be done by the applicant during the trial of the case. In view thereof, no interference is called for.
5. 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 record of the case, it appears that the applicant and the opposite party no.2 were known to each other and were having business relationship. The opposite party no.2 has advanced a loan of Rs. 12,00,000/- to the applicant herein, thereupon, an agreement was executed between the parties that the applicant shall make the payment of the aforesaid amount of Rs. 12,00,000/- to the opposite party no.2 within a period of 24 months, if not paid the opposite party no. 2 was at liberty to utilize the cheques which were issued as security to the aforesaid payment. Accordingly, as per the allegations in the complaint the applicant has failed to make the payment, thereupon, the said cheques were utilized by the opposite party no.2 and submitted for encashment, which was dishonored with a remark "insufficient fund". Thereupon, a legal notice was issued on 06.12.2023 and when the applicant failed to comply with the said notice, the instant complaint case has been filed. Prima facie the issuance of cheque or the existence of liability is not in dispute. The only submission of the applicant is that he has already repaid the amount, that is the subject matter of evidence to be dealt with before the trial court.
6. In view of the presumption under Section 139 of the N.I. Act, it shall be presumed that the said cheques were issued in discharge of the legal liability by the applicant herein. Therefore, this Court does not find any good reason to interfere in the instant application and the same and is accordingly dismissed .
Order Date :- 22.7.2024 Shubham Arya
(Anish Kumar Gupta, J.)
Digitally signed by :- SHUBHAM ARYA High Court of Judicature at Allahabad
1 issue framed by the court
Whether the High Court should quash the summoning order in a complaint under Section 138 of the Negotiable Instruments Act, 1881?
3 provisions across 2 enactments
Sh Varun Aggarwal
State Of Up Another
Anish Kumar Gupta
As recorded by the court registry
2 orders share this CNR
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