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2011 DIGILAW 2101 (ALL)

Sana Ullah Siddiqui v. State of U. P. and Another

2011-09-08

NAHEED ARA MOONIS

body2011
Hon’ble Naheed Ara Moonis, J. : Heard, the learned counsel for the applicant, the learned AGA for the State and perused the record.2. The instant application has been filed by the applicant with a prayer to quash the entire proceedings of complaint case no.3345 of 2009, Arun Kumar Singh Vs. Sana Ullah Siddiqui, under Section 138 N. I. Act, P.S. Cantt., District Gorakhpur, pending in the court of learned Judicial Magistrate-I, Gorakhpur, whereby the applicant has been summoned to face the trial.3. The applicant had purchased and financed a vehicle namely Mahindra Max on 23.3.2005 from the company namely Mahindra & Mahindra had only to the extent of rupees three lacs which was to be repaid by the applicant on 32 equal installments as Rs.3,80,910/-. A cheque was issued by the applicant dated 27.2.2009 bearing no.0411807 of Rs.6, 80,522/- and when it was submitted in the bank for encashment it was dishonoured due to insufficient fund. The legal notice was given by the opposite party no.2 on 30.3.2009 for the payment of the money but no payment was done by the applicant. Therefore a complaint was filed on 30.4.2009 enclosing the receipts of notice, the original copy of the cheque and the report of the bank which was registered as complaint case no.3345 of 2009. The court below on the basis of statement of the complainant and evidence adduced in support of complaint prima facie found offence under Section 138 N. I. Act has been made against the applicant and as such passed the impugned summoning order to face the trial.4. It is vehemently argued by the learned counsel for the applicant that the applicant has not purchased any vehicle as mentioned in the complaint. Neither he has paid any cheque nor any notice has been served upon him in respect of the payment of the amount of cheque which was dishonoured and the complaint has been filed with false allegation. Even the notice has not given the parentage of the complainant. He came to know only when he received a phone call from Lucknow. When he inquired from R.T.O. it is revealed that some other person has managed to obtain and purchase the vehicle and the applicant had been falsely implicated in the present case. In these circumstances the entire proceedings initiated against the applicant is an abuse of the process of court.5. When he inquired from R.T.O. it is revealed that some other person has managed to obtain and purchase the vehicle and the applicant had been falsely implicated in the present case. In these circumstances the entire proceedings initiated against the applicant is an abuse of the process of court.5. I have considered the submissions made by the learned counsel for the applicant. Prima facie offence is made out against the applicant as specifically mentioned in the complaint that on 27.2.2009 a cheque was issued for an amount of Rs.6,80, 522/- which was deposited in the bank and was dishonoured on 3.3.2009 and thereafter legal notice was sent to him on 30.3.2009 for reminding the money, therefore the notice was sent for giving a cheque which was dishonoured giving rise to an offence and hence the complaint was rightly filed against the applicant and the court below has rightly summoned the applicant once the cheque is issued by the drawer a presumption under Section 138 N.I. Act follow and will not preclude an action under Section 138 N.I. Act.6. From the perusal of the complaint and material on record as well as looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. The applicant has ample opportunity to raise his objections at the appropriate stage. All the submissions made at the bar relate to the disputed questions of fact which cannot be adjudicated upon by this Court under section 482 Cr.P.C. At this stage only a prima case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur Versus State of Punjab AIR 1960 SC 866 , State of Haryana Versus Bhajan Lal 1992 SCC (Cr.) 426. The disputed defence of the accused applicants cannot be considered at this stage.7. The prayer for quashing of proceedings is refused. The petition is accordingly dismissed.8. However, the applicant is directed to appear and surrender before the court below within 30 days from today and apply for bail. In case the applicant appeared and surrender before the court concerned within aforesaid period, his prayer for bail shall be considered and decided in accordance with law keeping in view of the settled law laid by this Court in the case of Amrawati and another Vs. In case the applicant appeared and surrender before the court concerned within aforesaid period, his prayer for bail shall be considered and decided in accordance with law keeping in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon’ble Apex Court reported in Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC). No coercive steps shall be taken against the applicant within the aforesaid period.9. In case, the applicant does not appear before the court concerned the court below be at liberty to proceed with the case in accordance with law.10. With the aforesaid directions, the instant petition is dismissed.__________