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2011 DIGILAW 2163 (ALL)

Kapil Garg v. State of U. P. and Another

2011-09-15

RAJESH DAYAL KHARE

body2011
Hon’ble Rajesh Dayal Khare, J. : Learned counsel for the applicant and Sri Rajesh Kumar Srivastava, learned counsel for opposite party No. 2 have filed supplementary affidavits today in court, which are being taken on record.2. Heard learned counsel for the applicant, Sri Rajesh Kumar Srivastava, learned counsel, who put in appearance on behalf of opposite party No. 2 and learned A.G.A. for the State-respondent.3. The present application has been filed for quashing of the summoning order dated 28.02.2011 passed by the Xth Additional Chief Judicial Magistrate, Agra in Complaint Case No. 4791 of 2010, under Section 138 Negotiable Instrument Act.4. Learned counsel for the applicant contends that the cheque of the applicant was lost, which has been misused by opposite party No. 2 and that the cheque was issued in the name of Firm Radhika Overseas and not in the name of opposite party No. 2 and, therefore, opposite party No. 2 does not have any locus to state that the cheque was returned unpaid with the endorsement that the payment was stopped by the drawer and further that it was not returned on account of insufficiency of fund and, therefore, no proceeding under Section 138 Negotiable Instrument Act could have been drawn.5. It is lastly contended by the learned counsel for the applicant that no notice was served upon the applicant.6. Sri Rajesh Kumar Srivastava, learned counsel for opposite party No. 2 contends that huge amount was taken by the applicant from opposite party No. 2 in lieu of the same a cheque was given, which was returned unpaid and thereafter the proceeding has rightly been initiated.7. 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 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 facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 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. State of Punjab, AIR 1960 SC 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 summoning order dated 28.02.2011 is refused.9. However, in the circumstances of the case, it is provided that if the applicant moves an application for surrender before the court concerned within three weeks from today, the Magistrate concerned shall fix a date about two weeks thereafter for the appearance of the applicant and in the meantime release the applicant on interim bail on such terms and conditions as the court concerned considers fit and proper till the date fixed for the disposal of the regular bail.10. The court concerned shall also direct the Public Prosecutor to seek instructions from the investigating officer by the date fixed and also give an opportunity of hearing to the informant and thereafter decide the regular bail application of the applicant in accordance with the observations of the Full Bench of this Court in Amrawati and another Vs. State of UP, 2005 Cri. LJ 755, affirmed by the Supreme Court in Lal Kamlendra Pratap Singh Vs. State of UP, (2009) 4, SCC 437 and reiterated by the Division Bench of this Court in Sheoraj Singh alias Chuttan Vs. State of UP and others, 2009 (65) ACC 781.11. If further instructions are needed or if adjournment of the case on the date fixed for hearing becomes unavoidable, the Court may fix another date, and may also extend the earlier order granting interim bail, if it deems fit.12. In case the applicant fails to appear before the court concerned on the dates fixed or he fails to cooperate with the investigating officer during investigation, it will be open to the Public Prosecutor to move an application for cancelling the order of interim/final bail and the Court concerned may pass an appropriate order on merits.13. In case the applicant fails to appear before the court concerned on the dates fixed or he fails to cooperate with the investigating officer during investigation, it will be open to the Public Prosecutor to move an application for cancelling the order of interim/final bail and the Court concerned may pass an appropriate order on merits.13. It is further directed that the court below may be considered and decided the proceedings of Complaint Case No. 4791 of 2010 (Dheeraj Kumar Verma vs. Shri Kapil Garg), under Section 138 Negotiable Instrument Act, expeditiously, strictly in accordance with law after hearing the parties preferably within a period of eight months without granting any unnecessary adjournment to either of the parties.14. With the aforesaid directions, this petition is finally disposed of.___________________