Allahabad High Court
Dev Narayan Patel vs State Of U.P. And Another on 17 December, 2016
Bench: Om Prakash-Vii
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 48
Case :- APPLICATION U/S 482 No. - 31448 of 2016
Applicant :- Dev Narayan Patel
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Preet Pal Singh Rathore,Sarvesh
Counsel for Opposite Party :- G.A.,Anoop Trivedi
Hon'ble Om Prakash-VII,J.
The present application has been filed by the applicant to quash the order dated 8.2.2016 passed by the Chief Judicial Magistrate, Bareilly in the complaint case no. 10932 of 2015 (Shyam Singh Rathore Vs. Dev Narain Patel), P. S. Kotwali, district bareilly as well as the entire proceedings of the aforesaid case.
Heard learned counsel for the applicant, Sri Anoop Trivedi, learned counsel for the complainant and the learned AGA appearing for the State.
Submission of the learned counsel for the applicant is that not a single inch land was given to the applicant in lieu of agreement (MOU) said to have been executed. Applicant has lodged a first information report on 12.9.2015 before filing the present complaint against the complainant hence no question arises to issue any cheque to the complainant. It was further argued that the cheque in question had been given in advance only as security. Since contract could not be materialized, not a single inch land was given to the applicant hence on dishonour of the cheque in question proceeding under Section 138 Negotiable Instrument Act could not be started. It was further argued that proceeding of the aforesaid complaint is abuse of process of law. Power of attorney executed in respect of the said land has also been cancelled. It was further argued that in the F.I.R. dated 12.9.2015 although nothing was stated regarding the cheque in question but in the statement recorded under Section 161 Cr.P.C. during investigation this fact was disclosed to the Investigating Officer.
Learned A.G.A. as well as learned counsel appearing for the complainant argued that three cheques were issued by the applicant on different dates in lieu of agreement entered into between the parties. Sale deeds have also been executed and the cheques were presented before the bank but the same were dishonoured due to insufficiency of funds. Plea of security cheque as a defence could only be analysed during the trial after evidence. A prima facie case is made out against the applicant.
In the instant matter it is not disputed between the parties that the cheque in question belongs to the applicant which was presented before the bank concerned during the validity period and it was dishonoured due to insufficiency of funds. Complaint was filed within the prescribed period giving legal notice and providing opportunity to the applicant to make the payment good. From the perusal of the F.I.R. said to have been lodged on the part of the applicant against the opposite party no. 2, it is also evident that nothing was mentioned in the F.I.R. in respect of the cheque in question. Whether the cheque in question was given in advance as security can only be decided during the trial after evidence. It is the plea of the complainant that several sale deeds on the basis of agreement entered into between the parties have been executed. Thus it cannot be said that agreement entered into between the parties was not materalised. All the defences taken by the applicant require leading of evidence which can be done during trial. It is also pertinent to mention here that cancellation of power of attorney is not material in the matter at this stage. Aforesaid proceedings cannot be said to be an abuse of process of law on that basis.
In view of the aforesaid, no ground is made out to exercise the jurisdiction under Section 482 Cr.P.C. in the present matter. Thus prayer made in the present application is refused.
However, it is observed that in case the applicant surrenders before the court below and applies for bail within thirty days from today, the same shall be considered and decided in view of the settled law. For a period of thirty days from today, no coercive action shall be taken against the applicants.
It is made clear that no further time shall be allowed to the applicants for surrender before the court concerned.
With the above observations, the application stands disposed of.
Order Date :- 17.12.2016
Sachdeva
