Allahabad High Court
Rakesh Gupta vs State Of Up And Another on 1 August, 2019
Bench: Rajiv Joshi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 72
Case :- APPLICATION U/S 482 No. - 29177 of 2019
Applicant :- Rakesh Gupta
Opposite Party :- State Of Up And Another
Counsel for Applicant :- Preet Pal Singh Rathore
Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Joshi,J.
Supplementary affidavit filed today by learned counsel for the applicant is taken on record.
Heard Shri Preet Pal Singh Rathore, learned counsel for the applicant and learned A.G.A. for the State.
Present application under Section 482, Cr.P.C. has been filed for quashing the order dated 25.5.2019 passed by the Session Judge, Budaun in Criminal Revision No.93 of 2019 as well as summoning order dated 25.8.2017 passed by the Chief Judicial Magistrate, Budaun in complaint case No.484 of 2017 (Anshul Rastogi Vs. Rakesh) under Section 138, N.I. Act.
It reflects from the record that for dishonouring of cheque amount of Rs.5,00,000/- complaint was filed by the complainant-O.P. No.2 under Section 138, N.I. Act in which the applicant was summoned vide order dated 25.8.2017. The order was passed by the magistrate after recording the prima facie satisfaction. Against that order Criminal Revision No.93/2019 was filed, which too was dismissed on 25.5.2019 by the Session Judge, Budaun. Summoning order as well as revisional order are impugned in the present application.
It is contended by learned counsel for the applicant that the notice was given to the applicant on 19.1.2017 and the applicant has submitted his reply on 4.2.2017 and subsequently the complaint was filed on 7.3.2017, therefore, the complaint was filed beyond prescribed period of 30 days. It is further contended by learned counsel for the applicant that there is no compliance with regard to Section 204(2), Cr.P.C. and further there is no legal liability upon the accused-applicant to pay the amount as per the cheque and therefore, the payment was stopped by the applicant. It is further contended that the cheque number mentioned in the notice was never given by the applicant.
I have considered the submissions so raised by learned counsel for the applicant. So far as the question of limitation is concerned, under proviso 14(b) of the N.I. Act the magistrate has power to condone the delay, if any. Even from the revisional order it is apparent that no such point has been raised by the applicant before the revisional authority. The provisions of Section 204(2), Cr.P.C. provides that no summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. It is nowhere stated either in the application or before the revisional authority that the complainant has not filed any list of prosecution witnesses. The argument in this regard cannot be sustained. So far as the question of legal liability and stop payment of cheque is concerned, that will be seen in the trial at the time of hearing after the conclusion of the evidence.
Lastly, it is contended by learned counsel for the applicant that when the payment is stopped, then the application filed under Section 138, N.I. Act is not at all maintainable. In support of his contention learned counsel for the applicant placed reliance on Section 138(1), N.I. Act, which nowhere provides that in case the payment was stopped, then the complainant cannot file the complaint. The said argument has also no force.
I do not find any illegality or infirmity either in the summoning order or in the revisonal order.
The application lacks merit and is, accordingly, dismissed.
Order Date :- 1.8.2019
T. Sinha
