Allahabad High Court
Saurabh Bansal And 2 Others vs State Of U.P. And Another on 19 April, 2023
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 65
Case :- APPLICATION U/S 482 No. - 12397 of 2023
Applicant :- Saurabh Bansal And 2 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Prashant Singh
Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.
The present application under Section 482 Cr.P.C. has been filed for quashingthe summoning order dated 19.1.2021 as well as further proceedings of Complaint Case No. 9733 of 2020 (Ashish Kumar Garg Vs. Saurabh Bansal), under Section 138 of N.I. Act, P.S. Kamla Nagar, District- Agra, pending in the court of Additional Court No. 2, Agra.
As per the allegations made in the complaint, it is alleged that the applicants had issued a Cheque No. 000297 dated 18.8.2020 for a sum of Rs. 5,00,000/- to Opposite Party No.2, however, on presentation of the said cheque, the same was dishonoured by the bank and returned back.
After the dishonour of the cheque, a notice was sent to the applicants to make good the payment however, despite being noticed, the applicants have not made good the payment of the cheque amount as such, the present complaint u/s 138 of N.I. Act has been filed by the opposite party No. 2 against the applicants.
Learned Magistrate on the basis of allegation made in the complaint and after making the requisite enquiry under Sections 200 and 202 CrPC, has summoned the applicants to face trial under Section 138 of Negotiable Instrument Act vide order dated 19.1.2021.
Learned counsel for the applicants has submitted that complaint in the instant case has not been filed within the stipulated period and as such the complaint is bad in law. The second submission of the counsel for the applicants is that after issuance of the cheque, certain payments in lieu of the cheque has been made to the applicant and, therefore in view of the provisions contained in Section 56 of the Negotiable Instruments Act, the entire amount of cheque, for which, the cheque has been issued, is not payable to the opposite party No. 2, as such, proceeding under Section 138 of N.I. Act cannot be drawn against them. In order to buttress his argument, learned counsel for the applicants has placed a reliance on a Judgment reported in 2023 (1) SCC 578, Dashrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel and another.
Per contra, learned A.G.A. has supported the impugned order and has submitted that the complaint in question has been filed within the stipulated period after the cause of action has arisen and, therefore, the said contention in this regard by the counsel for the applicants is wholly untenable and liable to be repelled. He has further submitted that the factum of payment of certain amount of money in lieu of the cheque is also a disputed question of fact, which cannot be adjudicated in the instant proceedings under Section 482 Cr.P.C. The applicants will have to lead sufficient evidence in this regard before the court below, who shall appropriately consider the matter and pass appropriate orders, however on this ground the entire proceedings cannot be quashed by invoking the power under Section 482 Cr.P.C. Even the case law cited by the counsel for the applicants is distinguishable on facts. The said judgment has been passed after the entire evidence had been adduced before the court below and the applicants had been acquitted on the said ground, however in the instant case the entire evidence is yet to come, as such the proceedings cannot be quashed.
Having considered the rival submissions made by the counsel for the parties and on perusal of the record, it is evident that the complaint in question has been filed within time from the date the cause of action arisen as envisaged u/s 138 of the N.I. Act and, therefore, the first contention of the counsel for the applicants is wholly untenable and liable to be discarded. So far as the second contention of the counsel for the applicants is concerned, the disputed question of part payment of money after the issuance of the cheque cannot be determined in the proceedings under Section 482 Cr.P.C., for which, the applicants will have to lead reliable evidence before the court below, which can only be appreciated by the court below and not by this Court in exercise of power under Section 482 Cr.P.C. The judgment cited by the counsel for the applicants is also distinguishable on facts as the said judgment has been passed only after the entire evidence had been recorded by the court below and the accused was acquitted, however in the present case, the entire evidence in this regard is yet to come which cannot be appreciated by this Court in exercise of power under section 482 Cr.P.C., as such the entire proceedings cannot be quashed by invoking the power under Section 482 Cr.P.C. at this stage.
The present application u/s 482 Cr.P.C. is devoid of merit and is accordingly dismissed.
Order Date :- 19.4.2023
KU
