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2016 DIGILAW 3484 (ALL)

Ravish Kumar v. State of U. P.

2016-10-19

OM PRAKASH VII

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JUDGMENT Om Prakash-VII,J. The present application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the order dated 1.2.2016 passed by the Additional Chief Judicial Magistrate, Sikohabad, District Firozabad in case no. 2253 of 2015 under Section 138 Negotiable Instruments Act, Police Station, South, District - Firozabad. Further prayer has been made to stay the further proceedings of the aforesaid case. Heard learned counsel for the applicant and the learned AGA appearing for the State. It is submitted by the learned counsel for the applicants that the complaint was filed on the basis of false facts and also on the basis of malice. It is further submitted that from the version of the complaint, offence under the aforesaid Section is not made out against the applicant. It is further submitted that information regarding stoppage of payment was also given to the Bank. No prima-facie case is made out against the applicant. The impugned orders suffer from illegality and infirmity. On the other hand, learned AGA has submitted that applicant has been summoned as per law on the basis of the facts and evidence available on record. The impugned order does not suffer from any illegality or infirmity. 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, I am of the view that no case is made out to interfere with the impugned order. The impugned order does not suffer from any infirmity or illegality. The Magistrate dealing with complaint at this stage has to see only prima-facie case and it cannot be said that no prima-facie case is made out against the applicants. Further, the plea raised before this Court would require leading of evidence, which can be raised before the court concerned at the appropriate Stage. As regards the submission regarding maintainability of complaint on the ground of information sent by the applicant to the Bank to stop the payment is concerned, on this ground the proceeding of the complaint cannot be quashed. Once the signature of the applicant on the cheque is available, a presumption under Section 139 of the Act must follow. As regards the submission regarding maintainability of complaint on the ground of information sent by the applicant to the Bank to stop the payment is concerned, on this ground the proceeding of the complaint cannot be quashed. Once the signature of the applicant on the cheque is available, a presumption under Section 139 of the Act must follow. Merely because drawer issued notice to the drawee or to Bank for stoppage of payment, it will not preclude an action under Section 138 of the Act by drawee or holder of cheque in due course. The Hon'ble Supreme Court in the cases of Electronics Trade and Technology Development Corpn. Ltd. V. Indian Technologists and Engineers (Electronics) Pvt. Ltd., AIR 1996 SC 2339 , Modi Cements Ltd. v. Kuchil Kumar Nandi, AIR 1998 SC 1057 and M.M.T.C. Ltd. vs. Medehl Chemicals and Pharma (P) Ltd., AIR 2002 SC 182 has expressed the same view. The contention raised by the learned counsel for the applicant on this score is not acceptable. Hence, the prayer made in the present application is refused. However, it is observed that in case the applicant surrenders before the court below and applies for bail, the same shall be considered and decided by the Court concerned in view of the settled law. With the above observations, the application stands disposed of.