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2013 DIGILAW 1118 (ALL)

Mohd. Javed Hazi Shafeekurrehman v. Mohd. Asif

2013-04-12

ADITYA NATH MITTAL

body2013
JUDGMENT Hon’ble Aditya Nath Mittal, J. : List has been revised. None present for the revisionist. 2. Heard learned AGA and perused the record. 3. This criminal revision has been filed against orders dated 6.8.2009 and 27.4.2010 passed by Additional Chief Judicial Magistrate District Moradabad in Complaint Case No.4013 of 2009 under Section 138 Negotiable Instruments Act. 4. The grounds mentioned in the revision are that both the orders are unlawful and the Court below has not considered the merits of the case. The provision of Sections 200 and 202 Cr.P.C. have also not been complied. All the allegations of the complaint are false and concocted. The revisionist has not received any notice therefore, there was no question of payment within 15 days therefore, the complaint could not have been filed within 30 days. By order dated 6.8.2009, the revisionist has been summoned to face the trial for the offence punishable under Section 138 Negotiable Instruments Act. 5. A complaint was lodged before the Chief Judicial Magistrate, Moradabad alleging that the revisionist had issued some cheques for payment which were dishonored by the Bank on the ground of insufficient funds. After dishonor of the cheques, registered notice dated 21.9.2009 as well as notice by UPC were sent which were not received back to the complainant. Therefore the notices shall be deemed to have been served. 6. Learned Additional Chief Judicial Magistrate-II, District Moradabad after considering the statement as well as the documentary evidence, came to the conclusion that a prima facie case punishable under Section 138 Negotiable Instruments Act is made out against the revisionist. Accordingly, he has been summoned. 7. Learned AGA has defended the impugned order. 8. 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, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haqe and another (Para-10), 2005 SCC (Cr.) 283 and lastly (2012) 11 SCC 465 . Detailed reasoned order at the stage of issuance of process is not required under the provisions of Code of Criminal Procedure. 9. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cr.) 192, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haqe and another (Para-10), 2005 SCC (Cr.) 283 and lastly (2012) 11 SCC 465 . Detailed reasoned order at the stage of issuance of process is not required under the provisions of Code of Criminal Procedure. 9. In (2012) 11 SCC 465 , it has been further held that defences may be taken into consideration only if defence(s) raised by accused are factually unassailable and incontrovertible and demolish foundation of prosecution case. Defences raised by the petitioner in present case are based on factual inferences which certainly ought not to be taken into consideration at stage of issuing process. The disputed defence of the accused can not be considered at this stage. Moreover, the revisionist has got a right of discharge at appropriate stage. 10. In the present case, the complainant had filed the disputed cheques, carbon copy of the notice, registry receipt and the memo of Bank by which the cheques were dishonored. Learned Court below has considered all the aspects of the matter and even in this revision it has not been denied that the said cheques were not issued by the revisionist. The Court below while passing the impugned order has considered all the aspects of the matter and the findings are based on evidence on record. Therefore, I do not find any error of law or perversity in the impugned order dated 6.8.2009. 11. As far as the order dated 22.4.2010 is concerned, the accused had not appeared in compliance of the summons therefore, process has again been issued. I do not find any error of law in the order dated 22.4.2010 because if in compliance of the summons, the accused does not appears before the trial Court, then the Court has no option but to issue process again. 12. For the facts and circumstances mentioned above, the revision is dismissed.