Nand Gopal Gupta vs State Of U.P. And Another
2012 Latest Caselaw 2453 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Reserved
 

 
Case :- APPLICATION U/S 482 No. - 11865 of 2012
 

 
Petitioner :- Nand Gopal Gupta
 
Respondent :- State Of U.P. And Another
 
Petitioner Counsel :- Pratik J. Nagar
 
Respondent Counsel :- Govt. Advocate,M.A.Khan,Prabhakar Awasthi,R.P. Srivastava,Sharad Malviya
 

 
Hon'ble Rajesh Dayal Khare,J.

Heard Sri Pratik J. Nagar, learned counsel for the applicant, Sri Prabhakar Awasthi, Sri R.P. Srivastava and Sri M.A. Khan, learned counsel for the opposite party no.2, Sri Sharad Malaviya, learned counsel for the opposite party no.3 and learned A.G.A. for the State respondent.

The present 482,Cr.P.C. application has been filed for quashing the proceedings of complaint case no. 1321 of 2009 (Amar Nath Vaish Vs. N.G. Gupta) under Section 138 of Negotiable Instruments Act, P.S. Kotwali District Allahabad.

It is contended by the learned counsel for the applicant that on 15.5.2006, the applicant had issued a cheque no. 000130 for Rs. 1,50,000/- to the opposite party no.2, copy of which has been filed as annexure-2 to the affidavit; that the opposite party no. 2 had tempered the said cheque and changed the year from 2006 to 2008, thereafter presented the same to the Bank for payment, which was returned unpaid. Thereafter, notice was given to the applicant no.2 by the opposite party no.2 on 8.12.2008, which was allegedly served upon the applicant on 9.12.2008 but payment was not made thereafter also, copy of notice has been filed as annexure-3 to the affidavit; that aforesaid notice was neither served upon the applicant nor the detail of cheque number was specified. Thereafter, opposite party no.2 filed a complaint case under Section 138 of Negotiable Instruments Act before the Additional Chief Judicial Magistrate, Allahabad, and after recording the statement of complainant and witnesses, summoned the applicant; that although the matter was fixed before the Additional Chief Judicial Magistrate on number of occasions but summons were not served upon the applicant, therefore, the applicant could not appear; that on 4.11.2010 matter was transferred to the court of Judicial Magistrate III, Allahabad, who fixed 15.1.2011 in the matter but as the summons were not served upon the applicant, the matter was again adjourned for 25.6.2011, on which date without ascertaining about the service of notice upon the applicant, bailable warrant was issued against the applicant to ensure the presence of the applicant; that neither summons nor bailable warrant has been served upon the applicant; that the applicant came to known about the pendency of the case on 17.3.2012 when the news item was published in the news daily that bailable warrant has been issued against the Ex Minister, as such, present application has been filed.

Learned counsel for the applicant has drawn the attention of this Court to annexure-1 to the affidavit, whereby in paragraph no.1 it has been stated that cheque of Rs. 1,50,000/- bearing number 000130 was given by the applicant to the opposite party no.2, which was returned back unpaid. Learned counsel for the applicant has also drawn attention of this Court to annexure-2 to the affidavit, which is photocopy of cheque and has argued that said cheque was issued on behalf of Krishna Departmental Store but Krishna Departmental Store has not been made party in the complaint. Learned Counsel for the applicant has relied upon judgment of Hon'ble Apex Court in the matter of Anil Hada Vs. M/s Godfather Travels and Tours Pvt. Ltd., reported in JT 2012 (4) SC 489, in support of his contention. Reference has also been drawn to annexure-3 to the affidavit, which is a notice, which was alleged to have been sent to the applicant by the opposite party no.2 and it is argued that in paragraph no.1, the cheque number is mentioned as 211016004, which is not the cheque, which was issued by the applicant. Learned Counsel for the applicant has relied upon judgment of Hon'ble Apex Court in the matter of Union of India Vs. L. Ram Kumar, reported in 1959 AIR (Ald) 168, in support of his contention.

It is contended by the learned counsel for the applicant that since Krishna Departmental Store, on whose behalf cheque was issued to the opposite party no.2, was not made party in the complaint, therefore, under the provisions of Section 141 of Negotiable Instruments Act, same is bad in law and cannot be sustained in law; that as the cheque number was not correctly mentioned in the notice, therefore, no complaint under Section 138, of the Act could have been filed by the opposite party no.2. Learned Counsel for the applicant has relied upon judgment of Hon'ble Apex Court in the matter of Dominion of India Vs. Roop Chand, reported in 1950 ALJ 595, in support of his contention.

When the matter was taken up on 14.5.2012 on the request made by the learned counsel for the applicant, he was permitted to request the learned counsel for the Central Bank of India to remain present on the next date to inform the Court, after obtaining instructions, as to in which year, the cheque book in question was issued to the applicant. Vide order of this Court dated 16.5.2012, on the request of learned counsel for the applicant, the Central Bank of India was permitted to be impleaded as respondent. Sri Sharad Malaviya, learned counsel, appeared on behalf of Central Bank of India and had sought time to produce the record as to when cheque in question was issued to the applicant. When the matter was taken up today Sri Malaviya, appeared and produced the photocopy of the relevant page of the register containing details of cheques issued to various account holders and has stated that cheque book in question, from which the cheque was issued by the applicant to the opposite party no.2, was issued on 21.2.2005. Sri Malaviay has also produced statement of account of Krishna Departmental Store and has stated that cheque number 000129 and 000131 had been issued on 16.5.2006 and 3.10.2006 in favour of Jahanvi Sales and Nandi Ram's Rice Mill, respectively, photocopy of which has been produced, which is taken on record.

Learned counsel for the respondent no. 2 has contended that the cheque was issued by the applicant to the opposite party no. 2 in the year 2008 for the dues, which had accrued for supply of Cement, which was supplied by the opposite party no.2 in the year 2008, which cheque was returned by the Bank with the endorsement that the fund is insufficient, copy of the bank memo authenticating the same has been filed as annexure CA-2 to the counter affidavit dated 24.5.2012; that the applicant was fully aware about the pendency of the present proceedings but he deliberately avoided the same; that in the notice, due to inadvertent mistake, mica code of Bank was mentioned instead of cheque number, which was only a typographical error; that opposite party no.2 is a businessman, who is engaged in the business of purchase and supply of cement and it is totally inconceivable that the cheque, which was given in the year 2006 would be kept by the opposite party no.2 for 1 ½ years and then it would be presented for payment; that no transaction took place between the applicant and opposite party no.2 in the year 2006, therefore, there was no occasion to issue cheque by the applicant to the opposite party no.2 in the year 2006; that the cheque was given to the opposite party no.2 by the applicant only in the year 2008 for supply of cement and sand; that various complaints under Section 138 of the Act have been filed against the applicant, his wife and other family members, which goes to show that the applicant is habitual in committing such offence; that the cheque in question was issued by the applicant from the cheque book, which was issued to Krishna Departmental Store, of which applicant was proprietor but it was issued against the dues, which accrued in favour of the opposite party no.2 in the year 2008 as no business transaction took place with Krishna Departmental Store, therefore, it was not necessary for the opposite party no.2 to have made Krishna Departmental Store as party in the complaint. Learned counsel for the respondent no.2 has relied upon judgment of Delhi High Court in the matter of Santosh Arora Vs. Jai Narain Aggarwal and others, reported in AIR 2010 (NOC) 192 (Del) and has argued that non-mentioning of cheque number or giving incorrect number in a proceedings under Section 138 of Negotiable Instruments Act would not be fatal. It is further contended that due to inadvertent mistake mica code number was mentioned in the notice instead of cheque number, that will not vitiate the proceedings. It is lastly contended on behalf of the opposite party no.2 that the controversy involved in the present application is purely of a factual nature, which cannot be gone into in the proceedings under Section 482, Cr.P.C. before this Court and which can be best adjudicated by the trial judge.

From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submission made at the bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482, Cr.P.C. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283.

The prayer for quashing the proceedings is refused.

After hearing the learned counsel for the parties and after perusing the materials on record, this application is disposed of finally with the direction to the Judicial Magistrate III, Allahabad to consider and decide the complaint case no. 1321 of 2009 (Amar Nath Vaish Vs. N.G. Gupta) under Section 138 of Negotiable Instruments Act, P.S. Kotwali District Allahabad, expeditiously, strictly in accordance with law, without granting unnecessary adjournment to either of the parties. 

Order Date :- 1.6.2012

Ashish