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2011 DIGILAW 2137 (ALL)

Vinod Kumar Verma v. State of U. P. and Another

2011-09-12

NAHEED ARA MOONIS

body2011
Hon’ble Naheed Ara Moonis, J. : Heard learned counsel for the applicant and the learned A.G.A.2. The present 482 Cr.P.C. petition has been filed by the applicant with a prayer for quashing of summoning order dated 18.1.2011, whereby the Judicial Magistrate 1st Gorakhpur had summoned the applicant in case no.1533 of 2010, Pramod Kumar Yadav Vs. Vinod Kumar Verma, under Section 138 N. I. Act, P.S. Cantt. District Gorakhpur.3. The opposite party no.2 had filed a complaint under Section 138 N. I. Act before the Judicial Magistrate, Gorakhpur on 31.5.2010 that the applicant had purchased a ‘Rino’ car in the name of his wife on 14.2.2009 of Rs.6,80,000/-. The applicant had financed three lacs rupees from the Andhra Bank, the opposite party no.2 is the Branch Manager of the Andhra Bank and paid three lacs rupees through draft and for remaining Rs.3,80,810/- a cheque no.060489 dated 9.12.2009 of I.D.B.I. Bank was given to the opposite party no.2 by saying that the said cheque may be encashed after one week. When after one week he had submitted the cheque in the bank that was returned by the bank with the endorsement that there is insufficient fund in the account of the applicant. Therefore a legal notice was sent to the applicant on 14.6.2010 and when no satisfactory reply was received the opposite party no.2 filed the present complaint against the applicant on 6.7.2010. The court below has recorded the statement of the complaint under Section 200 Cr.P.C. and on the basis of allegations made in the complaint and other evidence adduced thereof arrived at the conclusion that prima facie offence is made out against the applicant and as such passed the order dated 18.1.2011 summoning the applicant to face trial.4. It is contended by the learned counsel for the applicant that the applicant’s wife had also filed a complaint against the opposite party no.2 before the District Consumer Forum, bearing complaint no.228 of 2010 that the aforesaid vehicle of the applicant was grabbed by the opposite party no.2 and placed a cheque of I.D.B.I. by filing an amount of Rs.3,80,000/- so that the opposite party no.2 may not prosecute the applicant. Neither the said cheque was issued to the opposite party no.2 nor it was issued in the name of Andhra Bank, therefore the prosecution of the applicant is nothing but an abuse of the process of court.5. Neither the said cheque was issued to the opposite party no.2 nor it was issued in the name of Andhra Bank, therefore the prosecution of the applicant is nothing but an abuse of the process of court.5. Per contra, the learned AGA has contended that the opposite party no.2 has rightly been summoned by the court below as the commission of aforesaid offence has been made against the applicant under Section 138 N.I. Act as the cheque has become dishonoured.6. I have considered the submission 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 9.12.2009 a cheque was issued for an amount of Rs.3,80,810/- which was deposited in the bank and was dishonoured and thereafter a legal notice was sent to him on 14.6.2010 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. There is no illegality in the order passed by the court below summoning the applicant, as disputed question of fact with regard to the payment of money three cheques were issued by the applicant is disputed question of fact which will be considered during the trial on the basis of evidence lead by the parties, therefore this court will not embark upon the enquiry with regard to the gravity of the allegations made in the complaint.7. From the perusal of the impugned order 18.1.2011 as well as 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 and as such the court below has committed no illegality or irregularity summoning the accused applicants to face the trial. 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 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. 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.8. The prayer for quashing of the impugned summoning order dated 18.1.2011 is refused.9. There is no merit in the instant petition and it is accordingly dismissed.10. However, it is directed that the applicant shall appear and surrender before the court below within 30 days from today and apply for bail, his prayer for bail shall be considered and decided expeditiously 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).11. In case the applicant does not appear before the Court below within the aforesaid period, the court below is directed to proceed with the case in accordance with law.12. Office is directed to communicate the order to the court below to proceed with the case in accordance with law. ____________