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2016 DIGILAW 3820 (ALL)

Zahid Hasan v. State of U. P.

2016-11-28

OM PRAKASH VII

body2016
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 entire proceedings of complaint case no. 1126 of 2015 under Section 138 Negotiable Instruments Act, Police Station, Baraut, District - Baghpat arising out of summoning order dated 23.7.2016 pending in the court of Civil Judge (SD) 1st/Judicial Magistrate, Baghpat. 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 applicant that the complaint was filed on the basis of false facts and also on the basis of malice. For the same set of facts an F.I.R. has already been lodged but the facts mentioned in the complaint was not disclosed. Provisions of Section 210 CrPC are fully applicable to the present matter. Proceedings of the present complaint cannot go-on. In this regard, learned counsel for the applicant placed reliance on a decision of the Apex Court in S. Sagar Suri vs. State of Uttar Pradesh, 2000 LawSuit(SC) 196. It is further submitted that from the version of the complaint, offence under the aforesaid Section is not made out against the applicant. The impugned order suffers from illegality and infirmity. On the other hand, learned AGA has submitted that applicant has been summoned in accordance with law. The impugned order does not suffer from any illegality or infirmity. In this matter, cheque in question is said to have been issued on 24.4.2015 and the same was presented on 25.5.2015. Notice of dishonour was received by the complainant on 26.5.2015. Legal notice was issued on 2.6.2015 and when the amount of cheque in question was not paid, the complaint was filed on 10.7.2015. Thus, it is evident that the present matter is relating to the offence u/s 138 Negotiable Instruments Act. The Apex Court in S. Sagar Suri case (supra) quashed the proceeding of complaint case for the offences under Sections 406 and 420 IPC on the ground that for the same set of facts a criminal proceeding u/s 138 Negotiable Instruments Act has already been initiated by the complainant. The facts of the aforesaid case is distinguishable with the facts of the present case. The facts of the aforesaid case is distinguishable with the facts of the present case. The present matter is relating to the offence under Section 138 Negotiable Instruments Act, which is based on entirely different footing to the criminal prosecution initiated under Section 406 and 420 IPC. The applicant cannot get any help with the law laid down in the said decision. Further, no question arises in this matter to the Court concerned to take recourse of the provisions of Section 210 CrPC as no other criminal proceeding in the form of complaint or charge-sheet is going-on in regard to the dishonour of the cheque in question. 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 from the facts and evidence available on record, it cannot be said that no prima-facie case is made out against the applicant. Further, to adjudicate/decide the pleas raised before this Court would require leading of evidence, which can appropriately be raised before the court concerned at the appropriate Stage. Hence, the prayer made in the present application is refused. The application is dismissed.