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2016 DIGILAW 1026 (ALL)

Sumit Kumar Singh v. State of U. P.

2016-03-18

OM PRAKASH VII

body2016
JUDGMENT Om Prakash-VII,J. Heard Sri Diwan Aslam learned counsel for the applicant and the learned A.G.A. for the State. 2. This application under Section 482 Cr.P.C. has been filed for quashing the proceedings of Complaint Case No. 362 of 2014 (Ram Singh Vs. Sumit) under Section 138 Negotiable Instrument Act, P.S. Kasimabad, District Ghazipur, pending in the Court of II Additional Judicial Magistrate, Mohammadabad Ghazipur as well as the summoning order dated 7.5.2015 and N.B.W. dated 7.11.2015 passed in the aforesaid case. Further prayer has been made to stay the further proceedings of the aforesaid case. 3. Submission of the learned counsel for the applicant is that complainant has not disclosed the date of service upon the applicant in the complaint. There was no cause of action in favour of the opposite party no. 2 to file the complaint against the applicant. Present proceeding of the aforesaid complaint case is abuse of the process of law. 4. Learned A.G.A. appearing for the State argued that summoning order was passed by the concerned Magistrate in accordance with law. There is no illegality, infirmity and impropriety in the summoning order. On the ground of missing of the cheques, proceeding of the aforesaid complaint cannot be quashed at this stage. 5. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record. 6. Having regard to the facts and circumstances of the case, after perusing the entire record and having considered the submissions made by the learned counsel for the parties, including the law laid down by the Hon'ble Supreme Court in Raj Kumar Khurana Vs. State of (NCT of Delhi) and another reported in (2009) 6 SCC 72 and also taking into consideration the settled legal position of the law. It is evident that while exercising its jurisdiction for taking cognizance of an offence under Section 138 of the Negotiable Instrument Act, the Court is only required to consider the allegations made in the complaint and evidence of the complainant and his witnesses, if any. In this respect, if the contents of the complaint are minutely perused, it is clear that the cheque no. 979751 amounting Rs.98,000/- bears signature of the applicant, which was dishonoured on 26.5.2014. Registered legal notice was sent on 30.5.2014. Notice was served but the amount due against the cheque was not paid. Complaint was filed on 24.6.2014. In this respect, if the contents of the complaint are minutely perused, it is clear that the cheque no. 979751 amounting Rs.98,000/- bears signature of the applicant, which was dishonoured on 26.5.2014. Registered legal notice was sent on 30.5.2014. Notice was served but the amount due against the cheque was not paid. Complaint was filed on 24.6.2014. The memo issued by the bank reveals that cheque in question was dishonoured on the basis of insufficient fund. When the complainant has clearly disclosed in the complaint that legal notice was sent to the applicant and the same was served, this fact fulfils the requirement of the law. The defence regarding missing of cheques can only be seen during trial after evidence. Hence, on the basis of ground taken in the application the proceeding of the aforesaid complaint cannot be quashed. The prayer made by the applicant is refused. 7. However, it is observed that in case the applicant surrenders before the court below and applies for bail within thirty days from today, the same shall be considered and decided in view of the settled law laid down by this Court in the case of Amrawati and another Vs. State of U.P., reported in 2004 (57) ALR 290 and affirmed by Hon'ble Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P., reported in 2009 (3) ADJ 322 (SC). 8. For a period of thirty days from today, no coercive action shall be taken against the applicant. 9. It is made clear that no further time shall be allowed to the applicant to surrender before the court concerned. With the above observations, the application stands disposed of.