Allahabad High Court
Layak Singh vs State Of U.P. And Another on 9 May, 2023
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:99307
Court No. - 68
Case :- APPLICATION U/S 482 No. - 6294 of 2023
Applicant :- Layak Singh
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Anshul Kumar Singhal
Counsel for Opposite Party :- G.A.,Vijay Prakash Mishra
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Anshul Kumar Singhal, learned counsel for the applicant, Mr. Vijay Prakash Mishra, learned counsel for the opposite party no.2 and Mr. Pankaj Srivastava, learned A.G.A. for the State as well as perused the entire material available on record.
The present 482 Cr.P.C. application has been filed assailing the order dated 02.02.2023 vide which application filed by the applicant as per direction of this Court, has been rejected.
Learned counsel for the applicant submits that earlier an application u/s 482 No.31374 of 2022 was filed, in which, on 14.11.2022, the co-ordinate Bench of this Court has passed the following order:-
"Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
By way of the instant application, the applicant has sought quashment of the entire proceeding in Case No.202 of 2021 Rajeev Chaudhary Vs. Layak Singh, under Section 138 of Negotiable Instrument Act, Police Station Beta-II, Greator NOIDA, District Gautam Buddh Nagar, pending before the Judicial Magistrate, Gautam Buddh Nagar.
Contention has been raised on behalf of the applicant to the extent that in this case, the proceeding drawn by way of invoking Section 138 Negotiable Instrument Act is not legally permissible, the same should be nipped at the bud. In this case, the so-called transaction was entered into between niece of the applicant and opposite party no.2. As a measure of the consideration of Rs.20,00,000/- was deposited in the bank account of the niece of the applicant. One cheque was also obtained from the applicant as security that in case cheque is not encashed then it shall be utilized for the purpose of consideration. Now this cheque was somehow presented for encashment which bounced, therefore, proceeding under Section 138 Negotiable Instrument Act was launched against the applicant, that too is sheer abuse of process of the court itself and, therefore, entire proceeding stands vitiated and need be quashed by this Court.
Learned A.G.A. has opposed the prayer for quashment of the proceeding.
Upon perusal of the averments made in the accompanying affidavit and upon consideration of document annexed therewith, obviously factual aspects involved in this case can be done by the court of first instance where the trial takes place and whatever objection the applicant has against the proceeding of the case, the same can be raised before the court below instead of raising the same before this Court and the court below shall, upon presentation of such application, dispose of the same on its merits. Therefore, prayer for quashment of the proceeding is refused.
However, taking into consideration the facts and circumstances of the case, it is provided that in case the applicant moves appropriate application within a period of 30 days, the same shall be considered and disposed of by the court concerned in accordance with law after affording opportunity of hearing to the parties.
For a period of 30 days from today, no coercive action shall be taken against the applicant.
It is made clear that in the event no such application is moved within the time prescribed above, this order will be of no avail to the applicant.
With the above direction, the instant application under Section 482 Cr.P.C. is finally disposed of. "
In compliance of the aforesaid order, an application was filed, which has been rejected by the Court below vide order dated 02.02.2023 without application of judicial mind and in mechanical manner. He further submits that the fact that the cheque was issued as a security has not been considered and no reasons have been assigned while rejecting the application, therefore, the impugned order is liable to be set aside.
Learned A.G.A. for the State as well as learned counsel for the opposite party no.2 submit that while deciding the case of the applicant in the earlier petition, the co-ordinate Bench of this Court had observed that the factual aspects involved in this case can be done by the court of first instance where the trial takes place and on that very ground had proceeded to refuse the prayer for quashment of the proceedings. The very same ground has been taken in the present application, which has been decided after holding that the aforesaid facts can be seen at the stage of trial. They further submit that there is no illegality or infirmity in the order dated 02.02.2023. Therefore, the present application is liable to be dismissed.
I have carefully considered the submissions advanced by learned counsel for the parties and have also gone through the material available on record.
Before proceedings further, it is apposite to give reference of some judgments of the Apex Court as well as this Court, wherein the Apex Court has laid down the guideline for quashing of criminal proceedings arising out of Section 138 of N.I. Act, which are as follows:-
(i) C.C. Alavi Haji Vs. Palapetty Muhammed and Another, reported in (2007) 6 SCC 555;
(ii) Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah, reported in 2014 12 SCC 685;
(iii) Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Pyarelal, reported in (1999) 3 SCC 35;
(iv) Basalingappa Vs. Mudibasappa reported in (2019) 5 SCC 418;
(v) Kishan Rao Vs. Shankargouda, (2018) 8 SCC 165;
(vi) Ranjit vs. State of U.P. and anoaspects involved in this case can be done by the court of first instance where the trial takes placether decided on 31.01.2020 passed in Application U/s 482 No. 47282 of 2019.
In view of the settled legal position, as noticed above, it is clear that at this stage, only a prima facie case is to be seen and the complaint cannot be thrown at the threshold and the factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done and appreciated by the trial court. All the submissions made by learned counsel for the applicant is disputed questions of fact. Therefore, when the facts have to be established by way of evidence, this Court while exercising the powers under section 482 of Cr.P.C., cannot interfere with such proceedings. Hence, no grounds are made out for quashing of the proceedings under section 138 of the Negotiable Instruments Act.
On the basis of discussions made herein above, this Court finds that there is no illegality or infirmity in the summoning order dated 02.02.2023 passed by the concerned court below. Therefore, the prayer for quashing the impugned summoning order as well as the entire proceedings of the aforesaid case are refused, as I do not see any abuse of the court's process at this pre-trial stage.
In view of the aforesaid, the application is, accordingly, dismissed.
Order Date :- 9.5.2023
Rahul.
