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2013 DIGILAW 1349 (ALL)

Asif Raza v. State of U. P.

2013-05-07

SURENDRA VIKRAM SINGH RATHORE

body2013
JUDGMENT Surendra Vikram Singh Rathore, J.: - 1. We have heard learned counsel for the applicant and learned A.G.A. and perused the material available on record. By means of this application, the applicant has challenged the proceedings of Case No. 1690 of 2005, (Rizwan Mustafa v. Asif Raza), under Section138 of Negotiable Instruments Act, Police Station Kotwali, District Barabanki pending before Chief Judicial Magistrate, Court No. 18, Barabanki. 2. By means of the aforesaid order the applicant has been summoned to face trial for the aforesaid offence. 3. It appears from perusal of the record that the applicant purchased one printing machine from the complainant for Rs. 3,10,000/-, and Rs. 2,00,000/- were paid in cash and balance amount was paid by cheque of Rs. 1,10,000/- which was deposited in the Union Bank of India, Barabanki on 02.11.2004 and the same was dishonoured on 15.12.2004. Thereafter, notice was sent to the applicant on 29.12.2004 the applicant assured the payment of the said cheque and therefore, the cheque was again deposited on 01.02.2005 and the same was again dishonoured on 23.02.2005. Then again notice was sent to the applicant which was received by him but neither any reply was sent nor payment was ensured, hence, the complaint was filed. 4. Submission of the learned counsel for the applicant is that since the machine was not working properly, therefore, he had filed a complaint in Consumer Forum and has also stopped the payment of the cheque. It is further submitted that with regard to the same offence a case under Case Crime No. 64 of 2005, under Sections 420, 467, 468, 471, 504, 506, I.P.C. was lodged by the complainant against the present applicant. After investigation in the said case the police filed final report on the ground that the case pertains to the dishonour of the cheque for which action may be taken under Section 138 of Negotiable Instruments Act. The said final report was accepted by the Magistrate. Feeling aggrieved thereby the Criminal Revision No. 134 of 2009 was preferred and the same was also dismissed. The proceedings filed with regard to the same incident in the Consumer Redressal Forum, Uttar Pradesh, Lucknow, where a direction was issued to Asif Raza to bring the machine in question to the District Consumer Forum on 08.07.2010. 5. Feeling aggrieved thereby the Criminal Revision No. 134 of 2009 was preferred and the same was also dismissed. The proceedings filed with regard to the same incident in the Consumer Redressal Forum, Uttar Pradesh, Lucknow, where a direction was issued to Asif Raza to bring the machine in question to the District Consumer Forum on 08.07.2010. 5. Submission of the learned counsel for the applicant is that the dispute is with regard to a business transaction and the dispute arose because of improper functioning of the machine, hence he had stopped the payment of the cheque and therefore, no offence is made out against him. 6. Section 138 of Negotiable Instruments Act provides for an independent action which has been enacted by the Legislature to ensure the proper payment of the Negotiable Instruments. Hence, the effect of the case of consumer forum or filing a final report in case of cheating would not effect the proceeding under Section 138, N.I. Act. 7. In the facts of this case alongwith this application, copy of the letter sent to Branch Manager, State Bank of India, Aminabad, Lucknow, has been filed wherein the stop payment orders have been issued with regard to the eight cheques. Out of the said eight cheques, seven cheques were for the amount of Rs. 15,000/- each and one cheque for Rs. 5,000/-. No stop payment order was issued with regard to the cheque of Rs. 1,10,000/-. Apart from it, the cheque which was issued in favour of the complainant was drawn at Urban Co-operative Bank, Lucknow, and not at State Bank of India. While the stop payment order was issued with regard to the cheque drawn at State Bank of India, Aminabad Branch, Lucknow. Section 138 of Negotiable Instruments Act lays down certain pre-requisite conditions which have to be fulfilled before any complaint can be entertained in the matter. 8. In the facts of this case, the cheque was subsequently, deposited within the period of its validity. Notice was issued within prescribed time which was received by the applicant and thereafter the complaint was filed on 08.04.2005. Therefore, all the pre-requisite conditions were fulfilled. 9. Submission of the learned counsel for the opposite parties is that after issuing the first notice he was asked to deposit the cheque again and on the assurance of the applicant the cheque was again deposited but it was again dishonoured. Therefore, all the pre-requisite conditions were fulfilled. 9. Submission of the learned counsel for the opposite parties is that after issuing the first notice he was asked to deposit the cheque again and on the assurance of the applicant the cheque was again deposited but it was again dishonoured. In view of the aforesaid discussions, there is no illegality in the order passed by the court below, the application being devoid of merit deserves to be dismissed and is accordingly dismissed.