Allahabad High Court
Raj Kumar Gupta vs State Of U.P.And Another on 12 July, 2023
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:137618
Court No. - 86
Case :- APPLICATION U/S 482 No. - 23500 of 2023
Applicant :- Raj Kumar Gupta
Opposite Party :- State Of U.P.And Another
Counsel for Applicant :- Pavan Kishore,Piyush Kishore Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Gupta,J.
1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
2. The present application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 06.05.2022 as well as entire proceedings of Complaint Case No. 1260 of 2020 (Anuj Kumar Gupta Vs. Raj Kumar Gupta), under Section 138 of N.I. Act, P.S. Jaitpura, District Varanasi, pending in the court of Additional Civil Judge (Jr . Div.)/ Judicial Magistrate, Court No. 11, Varanasi.
3. As per the allegations made in the complaint, it is alleged that the applicant had issued a Cheque No. 047385 dated 27.11.2019 for a sum of Rs. 2,00,000/- to the opposite party no.2, however, on presentation of the said cheque, the same was dishonoured by the bank and returned back.
4. After the dishonour of the cheque, a notice was sent to the applicant to make good the payment of cheque amount, however, despite being noticed, the due amount was not paid by the applicant and as such, the present complaint u/s 138 of N.I. Act has been instituted against the applicant.
5. Learned Magistrate on the basis of allegations made in the complaint and after making the requisite enquiry under Sections 200 and 202 CrPC, has summoned the applicant to face trial under Section 138 of Negotiable Instrument Act vide order dated 06.05.2022.
6. Learned counsel for the applicant has submitted that cheque, in question, was given to opposite party no.2 for payment to the traders but same has been misused by the opposite party no.2.
7. Learned counsel for the applicant has next submitted that no due debt or liability exists, therefore, proceedings u/s 138 of N.I. Act cannot be drawn against the applicant.
8. Learned counsel for the applicant has further relied upon the judgment reported in 2022 AIR (SC) 4961, Dashvathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel.
9. Per contra, learned A.G.A. has submitted that learned Magistrate on the basis of allegations made in the complaint and after making the requisite enquiry under Sections 200 and 202 CrPC, has summoned the applicant to face trial under Section 138 of Negotiable Instrument Act vide order dated 06.05.2022.
10. Learned AGA has further submitted that disputed question of existence of due debt or liability can not be considered at this stage, when the evidence is yet to come. He has further pointed out that there is a legal rebuttable presumption under Section 139 of the N.I. Act against the applicant and as such, impugned summoning order is just, proper and legal and do not call for any interference by this Court. There is absolutely no illegality or infirmity in the impugned order.
11. Having considered the rival submissions made by learned counsel for the parties and taking into consideration the fact that learned Magistrate on the basis of allegations made in the complaint and the statements recorded under Sections 200 and 202 Cr.P.C, has summoned the applicant to face trial, therefore, it can be said that there is no illegality or error of law in summoning the applicant to face trial u/s 138 of N.I. Act.
12. Moreover, disputed question of existence of due debt or liability and misuse of the cheque, in question, cannot be considered at this stage, when the evidence is yet to come and there is a legal rebuttable presumption u/s 139 of the N.I. Act in favour of holder of the cheque.
The judgment relied upon by learned counsel for the applicant has no relevance to the present controversy and is clearly distinguishable on facts.
13. In view thereof, I am of the considered opinion that the impugned order is just, proper and legal and do not call for any interference by this Court at this stage.
14. The present application u/s 482 Cr.P.C. is devoid of merit and is accordingly dismissed.
Order Date :- 12.7.2023
Nadim
