Dismissed

Khushbu Gupta v. State of U.P. and Another

Allahabad HC10 Jul 2024A482/21528/2024

Case brief

AI extract

What is this about?

The applicant sought quashing of proceedings under Section 138 NI Act and summoning orders, alleging non-receipt of legal notice and filing of a counter FIR. The Court held that service is presumed under Section 27 of the General Clauses Act and liability is presumed under Section 139 NI Act, though rebuttable. The application was dismissed as the ingredients of the offence were prima facie made o

What the court decided

AI extract

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

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Neutral Citation No. - 2024:AHC:135126

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HIGH COURT OF JUDICATURE AT ALLAHABAD

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*********

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(Sl.No. 19)

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Court No. - 79 Case :- APPLICATION U/S 482 No. - 21528 of 2024 Applicant :- Khushbu Gupta Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sanjai Singh Counsel for Opposite Party :- G.A.

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Hon'ble Anish Kumar Gupta,J.

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Heard Sri Yashwant Pratap Singh, Advocate holding brief of Sri Sanjai Singh, learned counsel for the applicant and Sri Padmakar Rai, learned A.G.A. for the State.

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The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the entire criminal proceedings of Complaint Case No. 6031 of 2021 (Kanhaiya Gupta vs Khushbu Gupta) under Section 138 Negotiable Instruments Act, Police Station-Kotwali, District-Ghazipur as well as summoning order dated 28.04.2022.

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Learned counsel for the applicant submits that in the instant case, though it is alleged that the legal demand notice was issued on 01.04.2021, however, no such notice has been received by the applicant herein. Learned counsel for the applicant also disputes the liability and states that since opposite party no. 2 used to operate the bank account of the applicant herein, has misutilized the cheque for which an FIR being Case Crime No. 0190 of 2021 dated 16.04.2021 under Sections 419, 420, 467, 468, 471, 504, 506, 352 IPC, Police Station-Kotwali, District-Ghazipur has also been lodged by the applicant against the opposite party no.2. Therefore, learned counsel for the applicant seeks quashing of the entire proceedings of the aforesaid complaint case.

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Per contra, learned A.G.A. submits that since the legal demand notice was sent through registered post, it shall be presumed under Section 27 of the General Clauses Act that it would have been served upon the applicant in due course and sufficient opportunities were granted to the applicant to comply with the said notice and yet he has failed to comply with the notice. Learned A.G.A. further submits that once the cheque is

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drawn from the account of the drawer, in view of Section 139 N.I. Act, it shall be presumed that the said cheque was given by the drawer of the cheque in discharge of its liability towards the holder of the cheque. However, such presumption is rebuttable and can be rebutted by the drawer of the cheque during the trial of the case. It is further submitted by learned A.G.A. that as per the complaint, the legal demand notice was issued on 01.04.2021, therefore, subsequent thereto on 16.04.2021 the applicant has lodged the FIR to create a defence in the said complaint case filed by the opposite party no. 2. However, such defence is yet to be proved before the trial court and in view thereof, learned AGA submits that no interference is called for in the instant case.

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Having heard the rival submissions made by learned counsel for the parties, this Court has carefully gone through the records of the case.

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From the plain reading of the complaint, it is apparent that allegedly the applicant has issued the cheque of Rs. 3,00,000/in discharge of her liability towards the opposite party no. 2. The said cheque was presented for encashment which was dishonored for the reason 'Insufficient fund' on 19.01.2021, thereafter, on 01.04.2021, legal demand notice was sent by registered post which shall be presumed to have been sent in ordinary course in terms of Section 27 of General Clauses Act latest within 30 days from the date of dispatch. In view thereof, all the ingredients of Section 138 N.I. Act are complied with by the opposite party no. 2 and in view of presumption under Section 139 N.I. Act, it shall be presumed that the cheque was issued by the applicant against discharge of her liability towards the opposite party no. 2; however, this presumption is rebuttable presumption and can very well be rebutted by the applicant during the trial of the case. So far as the lodging of the FIR is concerned that is subsequent to issuance of legal notice, therefore, there is possibility that such FIR was lodged by the applicant herein to create defence in the aforesaid complaint case. In view thereof, this Court do not find any good reason to entertain the instant application.

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For reasons aforesaid, the instant application is dismissed .

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Order Date :- 22.8.2024 Kirti

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(Anish Kumar Gupta, J.)

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Digitally signed by :- SMT KIRTI MISHRA High Court of Judicature at Allahabad

Khushbu Gupta v. State of U.P. and Another

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Khushbu Gupta v. State of U.P. and Another

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