Dismissed

Harkesh Singh v. State of U.P. and Another

Allahabad HC13 Aug 2024A482/18563/2024

Case brief

AI extract

What is this about?

In this quashing application under Section 482 Cr.P.C., the High Court held that an applicant challenging a summoning order under Section 138 N.I. Act cannot dispute liability before rebutting the statutory presumption. Dismissing the application, the Court directed the matter to proceed in the trial court.

What did the court decide?

Application under Section 482 Cr.P.C. to quash the summoning order and criminal proceedings was dismissed.

Harkesh Singh vs State of U.P. and Another — Cheque Dishonour | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:131289

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(Sl.No.50)

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Court No. - 79

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Case :- APPLICATION U/S 482 No. - 18563 of 2024

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Applicant :- Harkesh Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ramesh Kumar Shukla,Vivek Kumar Shukla

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Counsel for Opposite Party :- G.A.

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Hon'ble Anish Kumar Gupta,J.

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Heard Sri Ramesh Kumar Shukla, learned counsel for the applicant and Sri Mohd.Shoeb Khan, learned AGA for the State.

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The instant application u/S 482 Cr.P.C. has been filed by the applicant with the prayer to quash the impugned summoning order dated 20.10.2018 and the order dated 15.2.2024 as well as entire criminal proceeding of Complaint Case No.2178 of 2022 (Bhajan Singh vs. Harkesh Singh) under Section 138 of N.I. Act, pending in the court of Judicial Magistrate, Thakurdwara, Moradabad.

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Learned counsel for the applicant submits that admittedly the complaint case was a time barred complaint and the trial court has condoned the delay in filing the said complaint under Section 142(b) of N.I. Act. Learned counsel for the applicant without disputing the issuance of cheque disputes the liability and he submits that the instant application is nothing, but a malicious prosecution on the part of the opposite party No.2 and, therefore, he has prayed for quashing of entire proceeding against the applicant herein.

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Per contra, learned AGA submits that the delay in filing the complaint case under Section 138 of N.I. Act can be condoned in view of the proviso to Section 142(b) of N.I. Act and, therefore, there is no fault in condoning the delay on the medical terms submitted by the opposite party No.2 before the trial court. From the perusal of the summoning order dated 20.10.2018, prima facie a case has been made out against the applicant herein, therefore, the summoning order has been passed on 20.10.2018 by the trial court, which is in accordance with law, therefore, no interference is called for in the instant proceedings. Otherwise also, once it is admitted by learned counsel for the applicant that the cheque belongs to him and

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was issued by him, it shall be presumed under Section 139 of the N.I. Act that the said cheques were given in discharge of legal liability by the applicant herein. However, such presumption is a rebuttable presumption, which can be rebutted by the applicant during the trial by leading cogent evidence.

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Having heard the rival submissions made by learned counsel for the parties, this Court has carefully gone through the record of the case and from record of the case, it is apparent that four cheques of Rs.49,500/- each were issued by the applicant herein against the repayment of the loan advanced by opposite party No.2, which were presented for encashment and were dishonoured for the reason 'insufficient fund'. Thereafter, demand notice dated 11.4.2018 was issued and when the applicant failed to comply with the said notice, the complaint case was filed on 13.6.2018 along with an application for condonation of delay in filing the said complaint case, which was condoned by the trial court vide order dated 3.7.2018 and thereupon the summoning order was passed on 20.10.2018. Thereupon, the applicant herein has filed a protest petition under Section 15 (2) seeking recall of the summoning order, which was dismissed vide order dated 15.2.2024 by the trial court. Thereafter, the instant application has been filed by the applicant.

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The instant complaint case is pending since 2018 and the applicant has failed to appear before the trial court till date. From the perusal of the complaint case as well as relevant documents produced along with the complaint, prima facie, a case has been made out against the applicant specifically in view of the presumption under Section 139 of the N.I. Act. Though the applicant disputes the liability, however, it is not open for him to dispute the liability at this stage to rebut the said presumption under Section 139 of the N.I. Act, the applicant has to lead the cogent evidence before the trial court to rebut such presumption.

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In view thereof, this Court does not find any good reason to entertain the instant application and the same is dismissed , accordingly.

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Order Date :- 13.8.2024 LN Tripathi

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(Anish Kumar Gupta,J.)

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Digitally signed by :- LALIT TRIPATHI High Court of Judicature at Allahabad

Harkesh Singh v. State of U.P. and Another

Case brief

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Harkesh Singh v. State of U.P. and Another

Case brief

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