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2016 DIGILAW 1028 (ALL)

Samir Kumar Agrawal v. State of U. P.

2016-03-18

OM PRAKASH VII

body2016
JUDGMENT Om Prakash-VII,J. Heard Sri Rajiv Lochan Shukla, Sri Dhirendra Kumar Ojha learned counsel for the applicant and 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. 849 of 2015 (Smt. Priyanka Verma Vs. Samir Kumar Agarwal) under Section 138 Negotiable Instrument Act, P.S. Civil Lines, District Allahabad, pending in the Court of Additional Chief Judicial Magistrate, Court No. 10, District Allahabad as well as summoning order dated 26.5.2015 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 concerned Magistrate while passing the summoning order has placed reliance on the affidavit filed as evidence under Section 202 Cr.P.C. It was also argued that evidence under Section 202 Cr.P.C. cannot be taken on affidavit. It was further argued that cheque in question had been given as security cheque. Thus on the basis of information payment was not made as is clear from memo issued by the bank itself. 4. It was next contended that in spite of the fact that N.B.W. has been issued against the applicant, he has right to challenge the entire proceedings of the aforesaid complaint. 5. Learned A.G.A. appearing for the State argued that there is no illegality or infirmity in the summoning order. Evidence of the complainant can be taken on affidavit, as is clear from the Section 145 of the Negotiable Instrument Act itself. Defence taken by the applicant requires leading of evidence which can be done before the Court concerned at appropriate stage. 6. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record. 7. Perusal of the record goes to show that concerned Magistrate while passing the summoning order has taken into consideration the evidence adduced under Section 202 Cr.P.C. in the form of affidavit. The Hon'ble Supreme Court in the cases of MANDVI CO-OP BANK LTD VS. NIMESH B THAKORE reported in 2010 Law Suit (SC) 10 and J V BAHARUNI; GIRIRAJ PROTEINS PVT LTD; BALADEVBHAI RAMJIBHAI PATEL VS. STATE OF GUJARAT; D M FINANCE; VISHNUBHAI HARGOVINDAS PATEL reported in 2014 Law Suit (SC) 932 has interpreted that complainant can give evidence on affidavit. The Hon'ble Supreme Court in the cases of MANDVI CO-OP BANK LTD VS. NIMESH B THAKORE reported in 2010 Law Suit (SC) 10 and J V BAHARUNI; GIRIRAJ PROTEINS PVT LTD; BALADEVBHAI RAMJIBHAI PATEL VS. STATE OF GUJARAT; D M FINANCE; VISHNUBHAI HARGOVINDAS PATEL reported in 2014 Law Suit (SC) 932 has interpreted that complainant can give evidence on affidavit. The world "evidence of the complainant" used in Section 145 of Negotiable Instrument Act include the evidence adduced under Section 202 Cr.P.C. 8. In view of the above settled legal position, the submission raised by the learned counsel for the applicant has no substance. 9. As far as the plea taken by the learned counsel for the applicant that cheque in question had been issued as security cheque is concerned to adjudicate/ decide this plea leading of evidence would be required which can appropriately be done before the Court concerned during trial at appropriate stage. All the defences available to the applicant under Negotiable Instrument Act may be taken during trial. Proceeding of the aforesaid complaint on this basis cannot be quashed at this stage. Thus no ground is made out to exercise the jurisdiction under Section 482 Cr.P.C. and the prayer made in this application is refused. 10. 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). 11. For a period of thirty days from today, no coercive action shall be taken against the applicant. 12. 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.