The Allahabad High Court dismissed an application under Section 482 CrPC challenging a High Court order requiring a defaulting applicant to pay twenty percent of the cheque amount and a subsequent recovery warrant. Found delay laches, natural justice satisfied, and no maintainable case.
Application rejected.
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Neutral Citation No. - 2024:AHC-LKO:62731
Court No. - 11
Case :- APPLICATION U/S 482 No. - 8093 of 2024 Applicant :- Mahtab Ali
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko And Another Counsel for Applicant :- Mahmood Alam,Akil Imam,Ashok Kumar Verma,Mayank Dwivedi,Syed Saad Anwar,Vishwa Jeet Singh Counsel for Opposite Party :- G.A.
Hon'ble Abdul Moin,J.
Heard learned counsel for the applicant and learned AGA appearing on behalf of the State.
Under challenge is the order dated 23.05.2023 passed by the learned trial Court in Case No. 41365 of 2020 Inre; Himalaya Enterprises Vs. Mehtab Company, a copy of which is annexure 1 to the application. By the said order, the learned trial Court in proceedings under the provisions of the Negotiable Instrument Act, 1881 has required the applicant to pay an amount of twenty percent of the cheque amount to the complainant. Also under challenge is the order dated 23.04.2024, a copy of which is annexure 2 to the application whereby as the applicant has failed to deposit twenty percent amount as directed by the learned trial Court vide order dated 23.05.2023, a recovery warrant has been issued.
From a perusal of record it emerges that no reason emerge as to why the applicant has sought to approach this Court challenging the order dated 23.05.2023 after a substantial delay of more than one year three months and odd days.
Learned counsel for the applicant has tried to explain the aforesaid laches by stating that as a recovery warrant has only been issued on 23.04.2024 consequently, he has now been approached to challenge both the orders before this Court.
The aforesaid ground is found to be patently fallacious considering that the recovery warrant has only been issued on 23.04.2024 as the applicant has failed to comply the order dated 23.05.2023 as had been passed by the learned trial Court. Merely because the learned trial Court vide order dated 23.04.2024 has issued a recovery warrant which, as already indicated above, has been issued for non deposit of the twenty percent amount consequently, the same cannot be said to give a fresh time period to challenge the initial order dated 23.05.2023. Even otherwise, once the recovery certificate has been issued, there cannot be any question of a merger of an order of 23.05.2023 in the order dated 23.04.2024.
At this stage, learned counsel for the applicant has placed reliance on the judgment of the Apex Court in the case of Dashrathbhai Trikamabhai Patel Vs. Hitesh Mahendrabhai Patel and anr reported in (2023) 1 SCC 578 to contend that the cheque that has been issued by the applicant was not with
respect to legally enforceable debt and consequently, the complaint itself was not maintainable. The other ground urged is that the applicant has not been heard prior to passing the aforesaid order.
So far as the judgment of the Apex Court in the case of Dashrathbhai Trikamabhai Patel (supra) is concerned, suffice it to say that it is always open for the applicant to raise any legal argument that he may have before the learned trial Court and it is the duty of the learned trial Court to consider and decide the said ground.
So far as the ground that the applicant has not been heard by the learned trial Court prior to passing of the order dated 23.05.2023, suffice it to say in paragraph 4 of the said order itself indicates that the applicant, who was the respondent before the learned trial Court, had appeared before the learned trial Court and his statement had also been recorded. Merely because the applicant was not present on the date when the said order was passed it cannot be said that the order has been passed in violation of rules of natural justice. Thus, the said ground is rejected.
Keeping in view the aforesaid discussion, no case for interference is made out. Accordingly, the instant application is rejected subject to the aforesaid observations.
Order Date :- 10.9.2024 Pachhere/-
Digitally signed by :- SATYENDRA SINGH PACHHERE High Court of Judicature at Allahabad, Lucknow Bench
3 issues framed by the court
Whether the delay in challenging the recovery order and the non-issuance of egmoney warrant justifies interference under Section 482 CrPC?
Whether the non-availability of legally enforceable debt makes the cheque issue complaint maintainable?
Whether review proceedings were conducted in violation of the principles of natural justice?
Colour shows how this judgement treated each authority
Dashrathbhai Trikamabhai Patel Vs. Hitesh Mahendrabhai Patel and anrReferred¶11
(2023) 1 SCC 578 · Who else cites this
1 provisions across 1 enactments
Mahtab Ali
Abdul Moin
Satyendra Singh Pachhere
As recorded by the court registry
2 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
Abdul Moin and Satyendra Singh Pachhere
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