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2011 DIGILAW 2321 (ALL)

Dileep Sharma v. State of U. P. & Another

2011-09-29

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 under Section 482 Cr.P.C. has been filed by the applicant with a prayer to quash the complaint case no.1121 of 2008, Mahesh Singh Vs. Dillep Sharma, under Section 138 N. I. Act, P.S. Jagdishpura, District Agra, pending before the court of learned Additional Chief Judicial Magistrate(VI), Agra, whereby the cognizance has been taken against the applicant by order dated 18.11.2008.3. The opposite party no.2 had filed a complaint under Section 138 N.I. Act on the ground that the applicant had given him a cheque of Rs.49,000/- bearing cheque no.922211 dated 20.11.2007. When the said cheque was presented before the bank it was dishonoured on account of insufficient of funds. Thereafter the complainant had given a notice to the applicant with regard to the payment of cheque, who had assured that the payment will be made. Thereafter the cheque was deposited on 27.2.2008 and again it was dishonoured on 3.4.2008 with the endorsement of bank on account of insufficient of funds. The opposite party no.2 had given a legal notice on 22.4.2008 but the applicant has failed to reply, therefore the opposite party filed a complaint on 21.5.2002. The statement of the complainant under Section 200 Cr.P.C. was recorded. The complainant in support of evidence filed the cheque and memo with the endorsement of the bank. The court below had taken the notice of the statement of complainant and the evidence adduced by him and on the basis of which prima facie arrived at the conclusion that the applicant has committed an offence under Section 138 N. I. Act and thereafter issued summons to appear before the court on 17.12.2008.4. It is contended by the learned counsel for the applicant that the complaint does not speak about the service of notice upon the applicant with regard to the dishonour of cheque. There is no provision in the Negotiable Instrument Act with regard to the issuance of notice twice and as such the summoning order passed against the applicant suffers from manifest error of law.5. There is no provision in the Negotiable Instrument Act with regard to the issuance of notice twice and as such the summoning order passed against the applicant suffers from manifest error of law.5. Per contra the learned AGA has contended that the issuance of notice and service of notice upon the applicant, which is being denied by the applicant, is a disputed question of fact, and can only be considered at the stage of trial after leading evidence by both the parties. The case is pending since 2008 when the cognizance was taken against him, therefore, the petition deserves to be dismissed on the ground of inordinate delay and laches.6. From the perusal of the complaint it is evident that the applicant had given a cheque to the complainant, which become dishnoured, the opposite party no.2 had given legal notices twice to which the applicant failed to gave any reply nor returned the money to the opposite party no.2. The denial with regard to the service of notice can only be considered by leading evidence by both the parties. At this stage meticulous analysis is not required and 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. to thwart the legitimate prosecution at its inception. It would be nothing short of travesty of justice on the ground that there is dispute with regard to the issuance of notice. The applicant has ample opportunity to raise all objections for claiming discharge at the appropriate stage. 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.) 283.7. There is no illegality in the summoning order passed against the applicant, therefore, the prayer for quashing of the complaint case is refused. The petition is accordingly dismissed. The trial court is directed to proceed with the case against the applicant in accordance with law.8. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283.7. There is no illegality in the summoning order passed against the applicant, therefore, the prayer for quashing of the complaint case is refused. The petition is accordingly dismissed. The trial court is directed to proceed with the case against the applicant in accordance with law.8. However, it is directed that in case, the applicant 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 expeditiously 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).9. With the aforesaid directions, this petition is dismissed._________