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2011 DIGILAW 1656 (ALL)

Indu Bhusan Ojha v. State of U. P. and Another

2011-07-11

RAJESH DAYAL KHARE

body2011
Hon’ble Rajesh Dayal Khare, J. : Heard learned counsel for the applicant and learned A.G.A. for the State-respondent.2. The present 482 Petition has been filed for quashing of the criminal complaint case no. 4609 of 2008 under section 138 of Negotiable Instruments Act pending before the Chief Judicial Magistrate, Jaunpur and also for quashing of the order dated 04.05.2010 and also for quashing of the order dated 25.04.2011 whereby bailable warrants have been issued against the applicants.3. Learned counsel for the applicant contends that the mandatory provisions of the Negotiable Instruments Act have not been complied with inasmuch as no notice was ever sent or received by the applicant. It is thus argued that the criminal proceedings under the charged sections is bad in law. It is further contended that no amount is due to be paid by the applicant to the opposite party no. 2.4. 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 at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got right of discharge under Section 239 or 245(2) or 227/228, Cr.P.C. as the case may through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.5. The prayer for quashing the proceedings? and the order dated 25.04.2011 is refused.6. Moreover, the applicant has got right of discharge under Section 239 or 245(2) or 227/228, Cr.P.C. as the case may through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.5. The prayer for quashing the proceedings? and the order dated 25.04.2011 is refused.6. However, it is provided that if the applicant appears and surrenders before the court below within 30 days from today and applies for bail, then his prayer for bail shall be considered in view of the settled law laid by the Seven Judges’ decision of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon’ble Apex Court reported in Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC), after hearing the Public Prosecutor. For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant. However, in case the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.7. With the aforesaid directions, this application is finally disposed of._________