Allahabad High Court
Gaurav Singh vs State Of U.P. And Another on 29 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:98358
Court No. - 92
Case :- APPLICATION U/S 482 No. - 14184 of 2024
Applicant :- Gaurav Singh
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Hitesh Pachori
Counsel for Opposite Party :- G.A.
Hon'ble Arun Kumar Singh Deshwal,J.
Heard Sri Hitesh Pachori, learned counsel for the applicant and Sri Anish Kumar Upadhyay, learned AGA for the State.
The present applicant has been filed for quashing the entire criminal proceedings of Complaint Case No. 28566/2023 (Anuj Agarwal Vs. Gaurav Singh), u/s 138 of Negotiable Instrument Act, P.S. Sikandara, District Agra along with summoning order dated 06.03.2024, pending in the court of learned Additional Chief Judicial Magistrate, Court No. 1, Agra.
Contention of the counsel for the applicant is that as per the complaint itself, the cheque in question was returned lastly on 11.10.2023 with the endorsement signature differed and thereafter, the opposite party no. 2 has sent demand notice on 17.10.2023, therefore, returning the cheque on the ground of signature differed will not attract the liability under section 138 N.I. Act whereas, it is clearly mentioned that the cheque should have been returned after bouncing on the ground fund insufficient. It is further submitted that as per the complaint cheque in question was initially presented before the Bank on 02.08.2023 had the opposite party no. 2 informed to the applicant about the returning of cheque on the ground of signature differed then he could have issued new cheque or may correct cheque itself. It is also submitted that the cheque in question was given as security cheque, same was misused by the opposite party no. 2 despite the fact that the applicant already paid the chqeue amount through U.P.I. In support of this contention he has also annexed the receipt of transfer amount as annexure-5.
Per contra, learned AGA has submitted that once the cheque was returned as bouncing for whatever reason the liability under section 138 N.I. Act will be attracted in view of the presumption under section 139 N.I. Act and it is also submitted by the learned AGA that all the other ground raised by the applicant are his defence that can be raised during trial but cannot be ground for quashing the impugned proceeding.
After hearing the rival submission of the counsel for the parties and on perusal of record it is clear that initially the cheque in question was submitted on 02.08.2023 which was returned back with endorsement signature differed and again opposite party no. 2 presented the cheque on 11.10.2023 which was returned back with the endorsement signature differed and thereafter, notice under section 17.10.2023 was also sent by the opposite party no. 2 to the applicant. So far as the contention of the counsel for the applicant that if the cheque is returned by the Bank on the ground of signature differed then, no liability under section 138 will be attracted, is no more res integra because this Court after considering the several judgments of Apex Court observed in application u/s 482 No. 17464 of 2024 by judgment dated 23.05.2024 that if any cheque is returned by the Bank on the ground case referred to drawer, instruction to stoppage for payment, exceeds arrangements, insufficient funds, signature differed or mismatch and account closed, even then prima facie that is sufficient for issuing summons u/s 138 N.I. Act. In view of the presumption u/s 139 N.I. Act as well as section 118 N.I. Act and also drawer will get the opportunity during trial that the endorsement in the return memo was incorrect as on the date of presentation of the cheque there was sufficient amount in the account of the drawer. So far as, the contention of the counsel for the applicant is that the cheque in question was a security cheque and he has already transferred the cheque amount prior to presentation of the same before the bank is disputed question of fact that can be decided during trial and on that ground proceeding cannot be quashed.
In view of the above, this Court does not finds any illegality in the impugned summoning order, therefore, the present application stands dismissed.
It is further provided that the applicant appear before the court below and apply for bail within a period of three weeks from today then his bail application shall be considered as per the law laid down in the case of Satendra Kumar Antil vs. Central Bureau of Investigation and Another, (2021) 10 SCC 773.
Order Date :- 29.5.2024
Nisha
