Allahabad High Court
Aviyan Food Products vs State Of U.P And Another on 11 January, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 66
Case :- APPLICATION U/S 482 No. - 12162 of 2022
Applicant :- Aviyan Food Products
Opposite Party :- State Of U.P And Another
Counsel for Applicant :- Abhishek Gupta
Counsel for Opposite Party :- G.A.,Shad Khan
Hon'ble Rajeev Misra,J.
1. Heard Mr. Abhishek Gupta, the learned counsel for applicant, the learned A.G.A. for State and Mr. Shad Khan, the learned counsel for first informant..
2. This application under Section 482 Cr.P.C. has been filed challenging the Summoning Order dated 08.12.2021 passed by Civil Judge (Senior Division)/F.T.C./Additional Chief Judicial Magistrate, Gautam Buddh Nagar in Complaint Case No. 30 of 2021 (Tradelable Verseas Pvt. Ltd. Vs. Aviyan Food Products) under Section 138 N. I. Act, Police Station-Phase-III, District-Gautam Buddh Nagar as well as the entire proceedings of aforementioned complaint case now pending in the court of Civil Judge (Senior Division)/F.T.C./Additional Chief Judicial Magistrate, Gautam Buddh Nagar.
3. Present application came up for admission on 14.09.2021 and this Court passed the following order:
"The present 482 Cr.P.C., application has been filed for quashing the proceedings of Complaint Case no. 30 of 2021, under Section 138 N.I. Act, P.S. Phase-II, District Gautam Budh Nagar, pending int he court of Civil Judge (S.D.) FTC/ Additional Chief Judicial Magistrate, District Gautam Budh Nagar and also quashing the impugned summoning order dated 8.12.2021.
Heard learned counsel for the applicant and learned AGA for the State regarding maintainability of the present petition under Section 482 Cr.P.C.
Learned counsel for the applicant has placed the judgment passed in application u/s 482 No. 17545 of 2022 whereby the petition under Section 482 Cr.P.C. filed by the accused applicant against summoning order passed by learned Magistrate under Section 138 N.I. Act, has been entertained and proceeding of trial court are directed to be stayed. Learned counsel for the applicant has placed reliance upon the judgement in the case of Raj Kumar Khurana vs. State of (NCT of Delhi) and Anr., 2009 Legal Eagle (SC) 787, wherein, the Hon'ble Apex Court has quashed the summoning order passed by learned Magistrate under Section 138 N.I. Act in Criminal Appeal No. 913 of 2009 filed against the order of Delhi High Court passed in Criminal Misc. Application No. 2890 of 2007.
Matter requires consideration.
Issue notice to the opposite party no.2 returnable within a period of four weeks. Steps be taken within a week.
Learned A.G.A. prays for and is granted four weeks' time for filing counter affidavit. Opposite party no.2 may also file counter affidavit within the same period. As prayed by learned counsel for the applicants, two weeks, thereafter, is granted for filing rejoinder affidavit.
List, as fresh, on 20.10.2022.
Till the next date of listing, proceeding of the court below in the aforesaid case shall be remain stayed.
Order Date :- 14.9.2022 "
4. Pursuant to above order dated 14.09.2022, pleadings have been exchanged between the parties.
5. Learned counsel for applicant submits that applicant issued Cheque No. 000051 dated 04.12.2020 valued at Rs.6,93,000/-. Aforesaid cheque was presented by complainant/opposite party-2 in his Bank on 11.02.2021 but the same was returned vide return memo dated 11.02.202 with remarks "payment stopped by drawer".
6. In view of above, complainant/opposite party-2 sent a legal notice dated 27.02.2021 in terms of Section 138 N. I. Act to the applicant asking him to pay the amount payable under the disputed cheque. However, no reply was submitted by accused/applicant to the said legal notice. Ultimately, after expiry of statutory period, complainant/opposite party-2 filed a complaint before court concerned which was registered as Complaint Case No. 30 of 2021 (Tradelable Verseas Pvt. Ltd. Vs. Aviyan Food Products) under Section 138 N. I. Act, Police Station-Phase-III, District-Gautam Buddh Nagar. Court below by means of summoning order dated 08.12.2021, summoned the applicant in aforementioned complaint case.
7. Thus feeling aggrieved by above, applicant has now approached this Court by means of present application under Section 482 Cr.P.C.
8. Learned counsel for applicant submits that present criminal proceedings are illegal inasmuch as the same are not maintainable. He has invited the attention of Court to the provisions contained in Section 138 N. I. Act and on basis thereof, he submits that the disputed cheque was not encashed on the ground that the payment was topped by the drawer. Stop payment is not a circumstance covered under Section 138 N. I. Act. He therefore submits that in veiw of above, no proceedings under Section 138 N.I. Act could be undertaken. To buttress his submission, he has placed reliance upon the judgement of the Apex Court in Raj Kumar Khurana vs State Of (NCT Of Delhi) & Anr reported in (2009) 6 SCC 72
4. Per contra, the learned A.G.A. for State and Mr. Shad Khan, the learned counsel for complainant/opposite party-2 have opposed this application. They submit that the issue as to whether stop payment by drawer is covered under the ambit of Section 138 N. I. Act or not, is no longer res-integra and stands settled by a Three Judges Constitution Bench of Apex Court in M/S Modi Cements Ltd. Vs. Shri Kuchil Kumar Nandi, (1998) 3SCC 249. Ratio laid down in aforesaid judgement has been reiterated by Apex Court in a subsequent judgement rendered in M/s Laxmi Dyechem Vs. State of Gujarat and others, (2012) 13 SCC 375. In view of above, they submits that submission raised by learned counsel for applicant for quashing the entire proceedings of aforementioned complaint case is wholly misconceived and therefore, present application is liable to be dismissed by this Court.
5. When confronted with above, the learned counsel for applicant could not over come the same.
6. Consequently, present application fails and is liable to be dismissed.
7. It is accordingly dismissed.
Order Date :- 11.1.2023
YK
