Mohd Mohsin Vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:62987

Court No. - 73

Case :- APPLICATION U/S 482 No. - 38482 of 2024

Applicant :- Mohd Mohsin Opposite Party :- State of U.P. and Another Counsel for Applicant :- Furquan Ahmad (Alvi) Counsel for Opposite Party :- G.A.

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Hon'ble Vikas Budhwar,J.

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Heard Sri Furquan Ahmad (Alvi), learned counsel for the applicant and Sri Moti Lal, learned A.G.A. for the State.

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This is an application under Section 482 of CrPC preferred by the applicant for quashing the summoning order dated 9.08.2023 under section 138 N.I. Act in pursuant Complaint Case no. 4616 of 2022 ( Mohd Asif Ahamd Vs. Mohd Mohsin ) pending in the court of Judicial Magistrate court no. 24 Azamgarh.

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Learned counsel for the applicant has submitted that a complaint was lodged by O.P. No.2 on 14.10.2019 against the applicant under Section 138 of N.I. Act relatable to the commission of offences under Section 138 of N.I. Act, when the cheque of Rs.13,36,000/which was presented in the Bank dated 15.06.2019 stood dishonoured on 13.09.2019 and further as per the recital contained in the complaint, notices were issued on 18.09.2019 and 24.09.2019, but there is no specific date mentioned as to when the said notice was served upon the applicant and further a totally incorrect averment was made that manipulation was done for avoiding service. Learned counsel for the applicant submits that the complaint itself is defective and the summoning order has been passed without considering the said aspect of the matter and thus it is vitiated.

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Learned A.G.A. on the other hand supports the summoning order as according to him, there is a complete recital contained in the complaint regarding issuance of the notice and also the fact that the notice was deliberately not received. He submits that this much is sufficient for summoning the applicant.

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Having heard learned counsel for the parties, the sole question which arises for determination is the extent of judicial intervention

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at this stage. Apparently, a cheque stood drawn by the applicant, which was dishonoured on 13.09.2019 and a communication whereof was made. Further there is a recital in page-19 of the complaint that the statutory demand notice was issued on 18.09.2019 and 24.09.2019, which according to the allegations in the complaint were not received by the applicant while getting incorrect postal endorsement. The Hon'ble Apex Court in the case M/s Ajeet Seeds Ltd. Vs. K. Gopala Krishnaiah , (2014) 12 SCC 685 had the occasion to consider the said contingency, according to which it was said that the issue with regard to service or nonservice is a matter which is to be taken in trial and further it is not necessary to aver in the complaint that inspite of the return of the notice, it was deemed to have been served. Once specific averment has been made regarding service, then the issue as to whether the service was made or not is triable. Further, the presumption under Section 139 of the N.I. Act is against the applicant.

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Accordingly, no good ground is made out. The application is rejected .

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At this stage the learned counsel for the applicant submits that the applicant shall be preferring an application under Section 147 of N.I. Act for compounding of the offences.

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In the opinion of the Court, an application under Section 147 N.I. Act is preferred for compounding of the offence before the court concerned, then this Court has no reason to disbelieve that the same shall be decided with most expedition strictly in terms of the judgment in the case of Damodar S Prabhu Vs. Sayed Babalal , AIR 2010 SC 1907 .

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Order Date :- 24.4.2025 N.S.Rathour

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(Vikas Budhwar, J)

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Digitally signed by :- NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad

Mohd Mohsin v. State of U.P. and Another

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