M/S Vivek Indene Gramin Vitrak And ... vs State Of U.P. And 2 Others
2023 Latest Caselaw 21343 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:160187
 
Court No. - 89
 

 
Case :- APPLICATION U/S 482 No. - 29022 of 2023
 

 
Applicant :- M/S Vivek Indene Gramin Vitrak And 2 Others
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- Chandra Shekhar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Deepak Verma,J.

1. Heard Sri Chandra Shekhar, learned counsel for the applicants, Sri Vishwa Deepak Mishra, learned AGA for the State and perused the material brought on record.

2. The present 482 Cr.P.C. application has been filed to quash the entire proceedings of Criminal Complaint Case No.256422 of 2022, under Section 138 of NI Act, P.S. Nazeerabad, District Kanpur Nagar as well as summoning order dated 28.02.2023, passed by Metropolitan Magistrate, Court No.8, Kanpur Nagar.

3. Counsel for the applicants submits that instant proceedings against the applicants is mala fide as applicants lodged FIR on 25.10.2022, before lodging complaint under Section 138 of NI Act, that one accused employee of applicant had stolen the money, kept in the office, thereafter on 26.10.2022 he made report/complaint in the police station that a cheque bearing No.664403 had also been stolen by the accused person. In his support, FIR and complaint/report dated 26.10.2022 annexed and submitted that cheque was stolen by employee of the applicant which is evident from FIR. In support of his contention he has placed reliance over the judgment of Hon'ble The Apex Court passed in the case of Raj Kumar Khurana Vs. State of (NCT of Delhi) and another. The proceeding pending before the court is abuse of process of law and the same should be decided.

4. Per contra, learned counsel for opposite party raised objection on the submission of applicants' counsel and submits that in the FIR there is no allegation in regard to stolen of cheque, thereafter, on the next day, i.e., on 26.10.2022 he made an application in the police station that one cheque has also been stolen by the accused person but there is no date of receiving of the report by the concerned police station on application dated 26.10.2022 and all other submissions are disputed question of fact.

5. Considering the facts and circumstances of the case and perused the Hon'ble Apex Court judgment, the fact involved in the Apex Court Judgment that the applicant informed in the police station as well as bank authority that cheque has also been stolen by someone. The facts of the judgment on which law has been laid down is entirely different from the fact of present case. In present FIR, there is no mention of cheque stealing and after one day he informed in the police station regarding cheque stealing but on complaint/report no date of receiving in concerned police station.

6. Having heard the learned counsel for the applicant and perused the materials brought on record, it does not appear to be a fit case to quash the entire proceedings and impugned order. Moreover, disputed question of existence of due debt or liability cannot be considered at this stage, when the evidence is yet to come and there is a legal rebuttal presumption U/s 139 of NI Act in favour of the holder of the cheque. The prayer to quash the same is hereby refused, at this stage as the argument raised by learned counsel for the applicant involves factual disputes and appraisal of evidence.

7. The present 482 application is dismissed with the aforesaid observation.

Order Date :- 9.8.2023

Nitin Verma