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2011 DIGILAW 2349 (ALL)

Amarnath Jaiswal v. State of U. P. and Others

2011-09-30

SURENDRA KUMAR

body2011
Hon’ble Surendra Kumar, J. : This revision is taken up in the revised list. None is present on behalf of the revisionist Amarnath Jaiswal, who is accused in the trial court, despite direction of the Court that the case would be listed peremptorily in the next cause list vide order dated 23.9.2011. This Court on 3.8.2007 has passed the order as follows :”List this case on 20th of August, 2007 peremptorily showing the name of Sri Pradeep Upadhayaya, as learned counsel for the opposite party nos. 3 and 4. It shows that the case is lingering on since long but it is adjourned for today.The stay order shall remain in operative only till 20th of August, 2007.”2. Thus, the case is listed peremptorily. However, learned counsel for the revisionist did not care to advance his submission on the points raised in the memorandum of revision.3. Learned A.C.J.M., Varanasi in Criminal Case No. 988 of 2005 (Shankar Das vs. Amarnath Jaiswal) under section 138 of Negotiable Instrument Act, under section 420 I.P.C., P.S. Chetganj, District Varanasi had vide order dated 10.3.2005 summoned the accused Amarnath Jaiswal under section 138 of the said Act fixing 28.5.2005 for appearance on finding prima facie case against him. Thus, summoning order dated 10.3.2005 passed by the trial court is under challenge in this court by way of instant criminal revision.4. The complainant Shankar Prasad Das (opposite party no.4) filed a criminal complainant against Shri Amarnath Jaiswal under section 138 of Negotiable Instrument Act alleging therein that the complainant needed some land for construction of school building. The accused took the complainant into belief that land of the accused was free from all encumbrances. The complainant being satisfied on the assurance given by the accused entered into agreement on 9.3.2004 for sale on consideration of Rs.3,47,000/-. However an amount of Rs.1,20,000/- was given in advance and remaining amount Rs.2,27,000/- was to be paid at the time of execution of sale deed. Subsequently, on deep inquiry, he came to know that the same land was already mortgaged with the Union Bank of India, Varanasi for a sum of Rs.5 lacs and original sale deed was deposited with the Bank. The accused also on 27.11.2005 made another agreement of the said land to some third person. Subsequently, on deep inquiry, he came to know that the same land was already mortgaged with the Union Bank of India, Varanasi for a sum of Rs.5 lacs and original sale deed was deposited with the Bank. The accused also on 27.11.2005 made another agreement of the said land to some third person. However, all the formalities were completed and notices as required for initiating proceeding under section 138 of Negotiable Instrument Act were addressed to the accused and then complaint was filed before the trial court.5. The learned trial court, after considering the evidence and documents, by the aforesaid summoning order summoned the accused to stand trial for the said offence. Though learned counsel for the revisionist has not made any submission, but this Court decides the criminal revision on merits after considering the submissions raised by the revisionist in the memorandum of revision.6. The first contention of the revisionist in the memorandum of revision is that the impugned summoning order is liable to be set aside as complaint is false and frivolous one. The second contention is that the revisionist had filed a civil suit bearing no.1087 of 2004 (Amarnath Jaiswal Vs. Kaushal Kishore and another) in the court of Civil Judge (Senior Division), Varanasi for cancellation of agreement. The third contention in the memorandum of revision is that the trial court has failed to apply his mind and summoned him in arbitrary manner. The last contention in the memorandum of revision is that no offence on the facts given in the complaint is made out.7. I have considered these submissions and perused evidence on record. All these contentions relate to the facts and this Court is not supposed to go into the veracity of facts at this stage particularly when summoning order is under challenge in this Court. As per the law laid down by Hon’ble Apex Court the trial court at the summoning stage is required to see sufficient material on record to establish prima facie case against the accused. This case is of dishonour of cheque where notices were given by the complainant to the accused and the learned Magistrate after considering the whole evidence was of the view that there was prima facie evidence to establish the case under section 138 of Negotiable Instrument Act against the accused and then he was summoned by the court below.8. This case is of dishonour of cheque where notices were given by the complainant to the accused and the learned Magistrate after considering the whole evidence was of the view that there was prima facie evidence to establish the case under section 138 of Negotiable Instrument Act against the accused and then he was summoned by the court below.8. I agree with the findings given by the trial court. In my opinion, prima facie case is made out under section 138 of Negotiable Instrument Act against the accused from the evidence on record. There is no illegality or irregularity of any kind requiring any interference at this stage. The impugned order is just, legal and correct one and is based on correct legal approach. The memorandum of revision has no force and is hereby dismissed. The stay order granted by this Court is hereby discharged. The trial court is directed to proceed with the trial at the earliest in accordance with law.________