Allahabad High Court
Smt. Preeti vs State Of U.P. And Another on 28 November, 2022
Bench: Sameer Jain
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 89
Case :- APPLICATION U/S 482 No. - 31515 of 2022
Applicant :- Smt. Preeti
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Neeraj Singh,Narendra Pratap Singh
Counsel for Opposite Party :- G.A.
Hon'ble Sameer Jain,J.
Heard Sri Narendra Pratap Singh, learned counsel for the applicant, Sri Subhash S Mehta, learned counsel for the first informant, Sri Jhamman Ram, learned A.G.A. for the State and perused the material brought on record.
By way of this application, applicant has prayed to quash the impugned summoning order dated 29.07.2022 as well as entire proceedings of Complaint Case No.7676 of 2022 (Sushil Kumar Gupta Vs. Smt. Preeti), under Section 138 N.I. Act, Police Station- Nai Mandi, District- Muzzafar Nagar pending in the court of Additional Court, N.I. Act, Muzaffar Nagar.
Learned counsel for the applicant submitted that applicant is the daughter-in-law of opposite party No.2 and after the death of her father, opposite party No.2, her father-in-law falsely implicated her in the present matter, although cheque in question never issued with regard to either any enforceable debts or liability but in spite of that Court below in routine manner issued summons against the applicant. To buttress his submission, learned counsel for the applicant has placed reliance upon the judgment of the Supreme Court in Krishna Janardhan Bhat Vs. Dattatraya G. Hegde reported in 2008 AIR (Supreme Court) 1325 and submitted that for offence under Section 138 N.I. Act, the cheque in question must be issued with regard to an enforceable debts which is missing in the present matter and therefore, proceeding pending against the applicant as well as summoning order against the applicant, both are liable to be quashed.
He further submitted that cheque in question was signed by applicant and her late father jointly who expired on 04.03.2022 and after the death of her father, opposite party No.2 presented the same in the Bank in the month of April, 2022, therefore, on this ground also proceeding pending against the applicant under Section 138 N.I. Act is bad.
He next submitted that, in fact, applicant never signed the cheque in question and in this regard an application was also moved by applicant before the Bank and an enquiry in this regard is pending, therefore, till the outcome of enquiry, it would not be appropriate to prosecute the applicant under Section 138 N.I. Act. He further submitted that applicant also filed some criminal case against her father-in-law i.e. opposite party No.2 and therefore, dispute is apparently pending between the parties and due to this reason opposite party No.2 lodged this complaint against the applicant in which applicant was summoned under Section 138 N.I. Act.
Per contra, learned A.G.A. as well as learned counsel for the first informant opposed this application and they submits that it is a case under Section 138 N.I. Act in which mens-rea is not required and as per the the allegation made in the complaint, cheque in question was jointly issued by applicant and her father and when the opposite party No.2 presented the same in the Bank then cheque was dishonored and thereafter legal notice was sent but in spite of service of notice no payment was made and ultimately opposite party No.2 had to file complaint under Section 138 N.I. Act against the applicant and therefore, there is no illegality in the impugned summoning order passed against the applicant. They further argued that argument advanced by learned counsel for the applicant cannot be appreciated at this stage and only the trial Court can properly adjudicate the arguments advanced by learned counsel for the applicant and therefore, the instant application is liable to be dismissed.
I have heard both the parties and perused the material brought on the record.
From perusal of record, it appears that applicant is the daughter-in-law of the opposite party No.2 and as per the complaint against a debt/liability of 12 lacks, a cheque was jointly issued by applicant and her father to opposite party No.2 but unfortunately in the meantime before presentation of the cheque in the Bank, the father of the applicant died and thereafter, opposite party No.2 presented the cheque in the Bank which was dishonoured. Mere demise of one of the signatory of the cheque does not invalidate the cheque in question which was jointly issued by applicant and her father, therefore, applicant cannot be escaped from the liability under Section 138 N.I. Act.
From the perusal of the complaint, it appears that cheque in question was issued against the liability of Rs. 12 lacks which was dishonoured and thereafter legal notice was also sent but in spite of service of notice, applicant failed to make payment of cheque in question and therefore, offence against the applicant under Section 138 N.I. Act is made out. Learned counsel for the applicant although placed the reliance upon the judgment of the Apex Court in Krishna Janardhan Bhat (supra) but from the perusal of judgment, it appears that it is a judgment which relates in the cases where the trial has already been concluded although the present matter is a pre-trial matter and therefore, aforesaid judgment would not help the applicant and in para 21 of the aforesaid judgment it is specifically stated that against any enforceable debts cheque should be issued. In the present matter there is enforceable debts as well as liability of Rs. 12 lacks, therefore, in view of the judgment of Krishna Janardhan Bhat (supra) also offence under Section 138 N.I. Act is made out against the applicant. As far as other argument with regard to non signature of the applicant on the cheque in question is concerned and other fact that she also lodged some F.I.R. against her father-in-law i.e. opposite party No.2. cannot help the applicant at this stage as defence taken by the applicant cannot be adjudicated at this stage and merely on the basis of anonymity pending against the applicant , proceeding pending against the applicant cannot be quashed. Further, there is a presumption under Section 139 N.I. Act which states that if cheque in question was issued by a person which was dishonoured then presumption would be against the drawer of the cheque i.e. applicant and applicant can only discharge the presumption under Section 139 N.I. Act during the course of trial and not at this stage.
From the above discussion, I find no merit in the argument advanced by learned counsel for the applicant.
Accordingly, this application is devoid of merit and it is hereby dismissed.
Order Date :- 28.11.2022
Sachin/-
