Allahabad High Court
Stay Prakash Gupta vs The State Of U.P. Thru. Prin. Secy. ... on 14 February, 2023
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Reserved on 9.2.2023
Delivered on 14.2.2023
Court No. - 14
Case :- APPLICATION U/S 482 No. - 1275 of 2023
Applicant :- Stay Prakash Gupta
Opposite Party :- The State Of U.P. Thru. Prin. Secy. Home, Lko. And Another
Counsel for Applicant :- Anurag Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Suresh Kumar Gupta,J.
This application under Section 482 Cr.P.C. has been filed to quash the proceedings pending in the court of Chief Judicial Magistrate, Pratapgarh vide complaint case no. 363 of 2014 (Smt. Shanti Shukla Vs. Stay Prakash Gupta) under Section 406, 420 I.P.C.
The present application under Section 482 Cr.P.C. has been filed against the summoning order dated 20.7.2017 passed by the Chief Judicial Magistrate whereby the applicant has been summoned to face the trial under Section 406, 420 I.P.C.
Learned counsel for the applicant submitted that opposite party no. 2 has filed complaint case no. 741 of 2015 under Section 138 N.I. Act before the Judicial Magistrate, Pratapgarh on 15.7.2014. The statement of the complainant/opposite party no. 2 was recorded under Section 200 Cr.P.C. and statement of the witnesses was recorded under Section 202 Cr.P.C. After recording the statements under Section 200 and 202 Cr.P.C. the summoning order was passed on 12.1.2016 against the applicant under Section 138 of the Negotiable Instrument Act, which is still pending before the Magistrate Court for adjudication.
On the same set of facts one complaint has also been filed by the opposite party no. 2 on 29.10.2014, which is pending as complaint case no. 363 of 2014, in which the statement of the complainant- Shanti Shukla was recorded under Section 200 Cr.P.C. and the statement under Section 202 Cr.P.C. of the witness -Dev Mani Shukla was recorded on 28.9.2016 and statement of the witness- Vidhi Bhushan Shukla was recorded on 18.10.2016. After recording the statement of the complainant and the witnesses, the summoning order was passed on 20.7.2017 under Sections 406, 420 I.P.C. Being aggrieved with the summoning order the present application under Section 482 Cr.P.C. has been filed.
Learned counsel for the applicant further submitted that opposite party no. 2 has mislead the court and has got the order dated 20.7.2017 by committing fraud. The complaint case was only for recovery of money. He further submitted that the applicant has already been summoned to face the trial under Section 138 N.I. Act and therefore, the subsequent parallel proceedings under Section 406, 420 I.P.C. on the same cause of action could not be commenced against the applicant, therefore, the present case is nothing but an abuses of the process of the law. In support of his submission, learned counsel for the applicant relies upon a judgment of Supreme Court in the case of Kapil Agarwal and other Vs. Sanjay Sharma and other (Criminal Appeal No. 142 of 2021) decided on 1.3.2021.
Learned A.G.A. vehemently opposed and submitted that the as per averments in the complaint it discloses that the applicant has given an Account Payee cheque no. 275226 of State Bank of India, Mumfordganj, Prayagraj amounting to Rs. 4 lacs on 30.3.2014 and when the alleged cheque was produced before his own Bank by the opposite party no. 2, then it was informed that the account relating to the said cheque has already been closed by the account holder i.e. applicant himself on 11.5.2013. He further submitted that issuance of cheque of the closed account shows the dishonest intention of the applicant to commit fraud against the opposite party no. 2.Thus, there is dishonest intention of the applicant. Therefore, it is manifestly clear and explicit that the applicant has committed fraud and cheating, so the trial court has rightly summoned the applicant to face the trial under Section 406, 420 I.P.C. Thus, the present petition filed by the applicant is liable to be rejected.
After considering the submissions of the learned counsel for the parties and after considering the material available on record, it appears that in the present case it was well know to the applicant that his account has been closed by him even then the applicant has issued a cheque of the closed account and there is no live account, therefore, the applicant has committed cheating by issuing a cheque of a closed account. The subjected matter of the case law i.e. Kapil Agarwal and other Vs. Sanjay Sharma and other cited by the learned counsel for the applicant is totally different from the subject matter of the present case. The question that whether the offence under Section 138 N.I. Act is made out against the applicant or not is not a bone of contention in the present case, therefore, the present application under Section 482 Cr.P.C. lack of merit and is liable to rejected.
The application under Section 482 Cr.P.C. is hereby rejected.
Order Date :- 14.2.2023
Anuj Singh
