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Allahabad High Court · body

2016 DIGILAW 1254 (ALL)

Dharmesh Kapoor v. State of U. P.

2016-04-06

OM PRAKASH VII

body2016
JUDGMENT Om Prakash-VII,J. The present application u/s 482 Cr.P.C. has been filed with the prayer to quash the summoning order dated 29.6.2015 passed by II- Additional Chief Metropolitan Magistrate, Kanpur Nagar, District Kanpur Nagar in complaint case no. 2028 of 2015 under Sections 138 of the Negotiable Instrument Act. Further prayer has been made to stay further proceedings of the aforesaid case. 2. Heard Sri O.P. Singh learned Senior Advocate assisted by Sri Hari Narayan Singh and Kunwar Ritesh Kumar, learned counsel for the applicant as well as learned A.G.A. for the State. 3. Submission of the learned counsel for the applicant is that date of service of the notice is not clear in the notice nor in the complaint, thus, there was no cause of action in favour of the opposite party no. 2 to file the present complaint. Legal requirement of the law as proceeded under Negotiable Instrument Act was also not fulfiled, therefore, also proceeding of the aforesaid complaint is abuse of the process of law. At this juncture, learned counsel for the applicant refers to the paragraph no. 22 and 23 of the affidavit of the application and argued that application be allowed and entire proceedings of the aforesaid case be quashed. 4. Learned A.G.A. appearing for the State argued that all the legal requirement to initiate the proceedings under Section 138 of N.I. Act have been fulfiled by the complainant. Specific averments regarding service of the notice was also made in the complaint. Issue raised by the applicant requires leading of evidence which can be done before the trial Court. 5. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record. 6. Perusal of the record goes to show that summoning order was passed on the basis of evidence adduced by the complainant under Section 200 and 202 Cr.P.C. Since the evidence under Section 200 and 202 Cr.P.C. could be filed through affidavit in the proceedings under Section 138 of Negotiable Instrument Act, therefore, concerned Magistrate has rightly placed reliance on such evidence. 7. 7. As far as arising of the cause of action is concerned, it is the case of the complainant that legal notice was send on 27.3.2015 but the same was not received by the applicant, therefore, it was returned back and on this basis it is averred that notice was served upon the applicant. Application is filed on 6.5.2015, if the time gap between the date of sending the notice and the filing of the complaint is taken into consideration, the essential requirements to fulfil the necessary ingredients under Section 138 of Negotiable Instrument Act are available. Fifteen days time for making the payment, if deducted from this period then also sufficient time is left for service upon the applicant. Complainant has also made specific averment about the liability for issuance of the cheques by the applicant. Thus, submission raised by the learned counsel for the applicant at this stage is not acceptable. All the factual aspects raised by the learned counsel for the applicant shall be dealt with by the trial court during trial. No ground is made out to exercise the jurisdiction under Section 482 Cr.P.C. Thus, the application is dismissed.