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2011 DIGILAW 2209 (ALL)

Vinod Dubey v. State of U. P. and Another

2011-09-20

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 Cr.P.C. petition has been filed for quashing the proceedings of complaint case no.2144 of 2010, under Section 138 of Negotiable Instruments Act, pending before the Chief Judicial Magistrate-III, Agra and also for quashing of the summoning order dated 23.6.2010.3. Learned counsel for the applicant contends that the cheque in question was lost, which has been misused by the opposite party no.2. It is further contended that the cheque does not bear the signature of? the applicant, therefore, no proceedings under Section 138 of Negotiable Instruments Act could have been drawn against the applicant.4. The contention of the counsel for the applicant is that no offence against the applicant is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention.5. 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 a right of discharge under Sections 239, 227/228 or 245(2) Cr.P.C. as the case may be 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.6. The prayer for quashing the proceedings of complaint case, is hereby refused.7. Moreover, the applicant has got a right of discharge under Sections 239, 227/228 or 245(2) Cr.P.C. as the case may be 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.6. The prayer for quashing the proceedings of complaint case, is hereby refused.7. However, it is directed that the applicant shall appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided 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 judgement passed by Hon’ble Apex Court reported in Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC) 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.8. With the aforesaid directions, this application is finally disposed of.______________________