Allahabad High Court
Shikha Jalan vs State Of U.P., Thru. Prin. Secy. ... on 22 May, 2023
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:35666
Court No. - 13
Case :- APPLICATION U/S 482 No. - 5025 of 2023
Applicant :- Shikha Jalan
Opposite Party :- State Of U.P., Thru. Prin. Secy. Deptt Of Home, Lko And Others
Counsel for Applicant :- Amit Chandra,Manoj Kumar Tripathi,Pancham Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Suresh Kumar Gupta,J.
1. At the very outset, learned A.G.A. has raised an objection that the applicant has made the Court as party, who has passed the summoning order.
2. Learned counsel for applicant is directed to delete the name of the court from the array of party during the course of the day.
3. Heard learned counsel for applicant, learned A.G.A. for the State and perused the material available on record.
4. By means of this application under Section 482 Cr.P.C. the applicant has sought following prayer:-
"Wherefore, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to set aside summoning order dated 02.02.2023 passed by learned Additional Chief Judicial Magistrate-I, Lucknow in Complaint Case No. 13664 of 2022, under Section 138 of the Negotiable Instruments Act, Police Station Gomti Nagar, District Lucknow as well as entire proceedings of the aforesaid case may also be quashed."
5. Learned counsel for applicant has submitted that the applicant is innocent and has wrongly been implicated in this case. Further submission is that the applicant in the year 2018-19 the applicant, her husband and her brother-in-law entered in some financial transactions with opposite party no. 3. In the meantime, the applicant lost her cheque in the office of opposite party no. 3. It is further submitted that the the applicant never handed over the impugned cheque to opposite party no. 3. The applicant sent a legal notice on 24.11.2021 to opposite party no. 3 not to present the disputed cheque for encashment. The applicant clearly intimated opposite party no. 3 that she had neither signed the disputed cheque nor issued the same in favour of opposite party no. 3. Therefore, she requested the opposite party no. 3 not to present the disputed cheques before the bank for encashment. It is further submitted that despite the prior notice given to opposite party no. 3 not to present the disputed cheques, the opposite party no. 3 presented the said cheques for encashment before the bank. Consequently the disputed cheques were dishonoured.
6. In support of his submission, learned counsel for applicant has relied upon judgment of Hon'ble Apex Court in the case of Electronics Trade and Technology Development Corporation Ltd. Vs. Indian Technologists and Engineers (Electronics) Private Ltd. reported in 1996 (1) SCR 843 and Madras High Court in the case of Mubarak Nisha Vs. R.M. Subramanian reported in 1997 88 Comp. Cas 172. By relying the aforesaid authority, learned counsel for applicant has submitted that since dispute cheque has not been issued by the applicant and legal notice for not to present the said cheque has been given to opposite party no. 3, no offence is made out against the applicant.
7. Learned A.G.A. for the State has submitted that disputed cheque has not been annexed by the applicant and disputed question of fact cannot be decided at this stage and the applicant has liberty to raise this issue before the court concerned.
8. So far as quashing of entire proceedings is concerned, from the perusal of the material on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against the applicant. All the submission made relates to the disputed question of fact, which cannot be adjudicated upon by this Court.
9. Moreover, the applicant has got a right of discharge according to the provisions prescribed in Cr.P.C., as the case may be, through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the trial court.
10. The prayer for quashing the proceedings is refused.
11. So far as regard the cognizance and summoning order passed by the learned trial court concerned, at the stage of taking cognizance, trial court can simply form an opinion as to whether the case is fit for taking and committing the matter for trial or not. In the present case, learned trial court clearly expressed his opinion that he perused all the record and clearly indicated that the material placed before him is sufficient to proceed the case. Thus, the cognizance order is not a proforma order. Every aspect is touched by learned trial court and applicant failed to adduce any evidence which caused prejudiced to him. So, the cognizance and summoning order is perfectly valid and there is no occasion to quash the same.
12. The applicant has liberty to raise all the submissions before the court concerned at the appropriate stage.
13. With the aforesaid observation/direction, this application under Section 482 Cr.P.C. is disposed of.
Order Date :- 22.5.2023
Virendra
