Vijendra Singh vs State of U.P. and Another

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 482 No. - 29438 of 2024

Vijendra Singh		.....Applicant(s)
	Versus
State of U.P. and Another		.....Opposite Party(s)
Counsel for Applicant(s)		: Akash Ojha
Counsel for Opposite Party(s)		: G.A.

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With

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APPLICATION U/S 482 No. - 29987 of 2024

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Vijendra Singh		.....Applicant(s)
	Versus
State of U.P. and Another		.....Opposite Party(s)
Counsel for Applicant(s) Counsel for Opposite Party(s)		: Akash Ojha : G.A.

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Court No. - 76

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HON'BLE VIKRAM D. CHAUHAN, J.

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Heard learned counsel for the applicant and learned AGA for the Staterespondent.

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Application under Section 482 No.29438 of 2024 has been filed by applicant for quashing the order dated 30.3.2024 as well as entire proceedings of Complaint Case No.114534 of 2023, under Section 138 of Negotiable Instruments Act, Omprakash Singh Vs. Vijendra Singh, Police Station Badagaon, District Varanasi pending in the court of ACJM 5th/JM 2nd, Varanasi.

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Application under Section 482 No.29987 of 2024 has been filed by applicant for quashing the order dated 30.3.2024 as well as entire proceedings of Complaint Case No.114529 of 2023, under Section 138 of

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Negotiable Instruments Act, Omprakash Singh Vs. Vijendra Singh, Police Station Badagaon, District Varanasi pending in the court of ACJM 5th/JM 2nd, Varanasi.

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It is submitted by learned counsel for the applicant that in the present case two cheques were dishonoured. One cheque is amounting to Rs.6,16,000/- and the other cheque was amounting to Rs.12,32,000/-. As per the complainant's case, Rs.50 lacs were given as loan by the complainant to the applicant, out of which Rs.9 lacs has been paid by the applicant to the complainant on 21.10.2022 and the remaining amount is Rs.41 lacs. A promissory note in this respect was issued, which was subsequently supported by five cheques and these five cheques were again reissued for Rs.6,16,000/- each.

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Learned counsel for applicant submits that the amount of Rs.9 lacs has been paid by applicant to the complainant is admitted in the complaint and the aforesaid amount has not been adjusted by the complainant prior to filing of the complaint on 2.11.2023.

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Learned counsel for the applicant has relied upon the judgment of Supreme Court in the case of Dashrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel and another, 2022 LiveLaw (SC) 830 . More particularly, paragraph 16 to submit that if there has been change in the circumstance such that the sum in the cheque does not represent a legally enforceable debt at the time of maturity or encashment, then the offence under Section 138 is not made out.

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On the strength of the aforesaid, learned counsel for the applicant submits that the loan amount due was returned of Rs.9 lacs and the remaining amount was Rs.41 lacs and in this respect, five cheques of Rs.6,16,000/- were issued. The aforesaid factum that the amount has been paid by the applicant to the tune of Rs.9 lacs is not disputed by the complainant in the complaint, the summoning order itself is not sustainable as the aforesaid fact has been concealed in the complaint and, therefore, the complaint would not be tenable under law.

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It is further submitted by learned counsel for the applicant that detail of subsequent payment being made by applicant to the tune of Rs.32 lacs has

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been annexed along with this application to demonstrate that the payment has been made.

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In the present case, it is to be seen that the complaint recites that Rs.50 lacs loan was given by the complainant to the applicant, out of which, Rs.9 lacs was returned by the applicant on 21.10.2022. Thereafter, on 21.10.2022 for remaining amount of Rs.41 lacs, promissory note was executed and the promissory note was supported by cheque, which was replaced by another five cheques of Rs.6,16,000/- each totalling Rs.30,80,000/-. It is not in dispute between the parties that the balance amount of the debt was Rs.41 lacs. However, the cheques were issued Rs.30,80,000/-, which has been dishonoured. The complainant has already adjusted Rs.9 lacs prior to filing of the complaint as the cheques were issued after adjusting Rs.9 lacs. After adjusting Rs.9 lacs, the total balance loan amount was Rs.41 lacs. The total value of five cheques is Rs.30,80,000/-. The aforesaid fact that the amount reflected is less than the balance due is not tenable and the cheque has been dishonoured. The presumption is in favour of the complainant under Section 139 N.I. Act.

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Accordingly, the argument of learned counsel for the applicant that the complainant has concealed the aforesaid fact is not sustainable in so far as the argument of learned counsel for the applicant that Rs.32 lacs have further been paid during pendency of the complaint and in this respect, the statement of account is filed. The same is a question of defence and is required to be raised before the trial court.

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The plea raised by the applicant in the present application are in the nature of defence of applicant-accused. The defence version of events would require a mini-trial. The defense evidence and arguments are meant to be presented and proved during the trial. It is now fairly settled that while exercising inherent jurisdiction under Section 482 Cr.P.C. or revisional jurisdiction under Section 397 of the Code of Criminal Procedure in a case where complaint is sought to be quashed, it is not proper for the this Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. The nature of plea raised by the applicant are essentially questions of fact and required appreciation of facts, which this court does not consider necessary to be

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considered at this stage as these facts are required to be proved by the applicant-accused before the trial court prior to the same being considered.

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