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2018 DIGILAW 1969 (ALL)

Rajesh Kumar v. State of U. P.

2018-09-12

RAJEEV MISRA

body2018
JUDGMENT & ORDER : Rajeev Misra, J. This application under Section 482 Cr.P.C. has been filed challenging the order dated 2nd May, 2018 passed by the Additional Chief Judicial Magistrate-IV, Gorakhpur in Complaint Case No. 1332 of 2013 (Avnish Rai vs. Rajesh Kumar), under Section 138 N.I. Act, Police Station Cantt., District Gorakhpur as well as the entire proceedings of the above mentioned complaint case. 2. Heard Mr. Rajiv Lochan Shukla, learned counsel for the applicant and the learned A.G.A. for the State. 3. Perused the application filed by the applicants and also the supplementary affidavit. 4. From the record, it appears that the applicant issued a cheque dated 2nd August, 2013 bearing No. 566694 valued at Rs. 24,71,000/- drawn on State Bank of India, Railway Colony Branch, Gorakhpur to the opposite party no.2. The said cheque was presented by the opposite party no.2 in his bank, but the same was returned unencashed on 22nd August, 2013. Consequently, as per the mandate of Section 138 (b) N.I. Act, the opposite party no.2 sent a legal notice dated 30th August, 2013 to the applicant asking him to pay the amount payable under the disputed cheque. However, when in spite of the aforesaid legal notice, the amount payable under the aforesaid disputed cheque was not paid to the opposite party no.2 by the applicant, the opposite party no.2 filed the complaint dated 26th September, 2013 in terms of Section 138 N.I. Act. 5. Upon perusal of the material on the record and the allegations made in the complaint, the court concerned summoned the present applicant by means of the summoning order dated 17th April, 2014. 6. After expiry of the period of more than four years from the date of filing of the complaint i.e. 26th September, 2013, the applicant filed an application dated 29th January, 2018 praying therein that Kumkum Rai be summoned by the court to give her testimony. The said application was filed on the ground that in lieu of the amount payable under the disputed cheque, the complainant Avnish Rai has got a sale-deed of the house belonging to the Rajesh Kumar executed in favour of his wife Kumkum Rai. Only when the aforesaid witness is summoned, it can be ascertained as to whether there exists any liability against the applicant towards the disputed cheque or not. 7. Only when the aforesaid witness is summoned, it can be ascertained as to whether there exists any liability against the applicant towards the disputed cheque or not. 7. During the pendency of the application dated 29th January, 2018, the applicant filed another application dated 2nd May, 2018 praying therein that Ram Pravesh may be summoned as a witness so that it may be ascertained as to how much money has been paid by the complainant to Ram Pravesh and Rajesh Kumar i.e. the applicant herein respectively. It will also be ascertained as to under what circumstances the disputed cheque was obtained from Rajesh Kumar I.e the applicant herein. However, it was stated that though the High Court has expedited the disposal of the above mentioned complaint case but no prohibition has been issued by the High Court that the right of the applicant to have an opportunity of hearing and lead evidence has been forfeited. This application dated 2nd May, 2018 was seriously contested by the complainant and it was endorsed on the application dated 2nd May, 2018 itself that the complaint case is at the stage of Section 313 Cr.P.C. for which last opportunity has also been granted to the accused. Only to delay the disposal of the complaint case, the application has been filed. 8. Both the applications dated 29th January, 2018 as well as 2nd May, 2018 came to be rejected by the Magistrate vide order dated 2nd May, 2018. The Magistrate came to the conclusion that the complainant is under legal obligation to proof the allegations made in the complaint himself. Therefore the accused cannot force or direct the complainant to summon a particular witness. On these findings both the applications were rejected by the Magistrate vide order dated 2nd May, 2018. Feeling aggrieved by the order dated 2nd May, 2018, the applicant has now come to this Court by means of the present application under Section 482 Cr.P.C. 9. Mr. Rajiv Lochan Shukla, learned counsel for the applicant submits that the reasoning recorded by the Magistrate for rejecting the applications dated 29th January, 2018 and 2nd May, 2018 are not only illegal but also erroneous. Mr. Rajiv Lochan Shukla, learned counsel for the applicant submits that the reasoning recorded by the Magistrate for rejecting the applications dated 29th January, 2018 and 2nd May, 2018 are not only illegal but also erroneous. Referring to the applications dated 29th January, 2018 and 2nd May, 2018, he submits that by means of the aforesaid applications, the applicant only prayed that Smt. Kumkum Rai and Ram Pravesh may be summoned to give their testimonies to find out the truth regarding the liability, if any, of the applicant in lieu of the disputed cheque. Therefore, it is submitted that it was not the case of the applicant before the court below or even before this Court that the complainant may be directed to produce the aforesaid persons as a witness. Consequently, it is urged that the reasoning recorded by the Magistrate for rejecting the applications dated 29th January, 2018 and 2nd May, 2018 are unsustainable in law. 10. Before proceeding to consider the correctness or otherwise of the impugned order dated 2nd May, 2018, it will be relevant to note that cognizance of a criminality punishable under Section 138 N.I. Act can be taken only when either of the two contingencies as mentioned in Section 138 N.I. Act are present i.e. (i) because of the amount of money standing to the credit of that account is insufficient to honour the cheque, or (ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank. There is no dispute between the parties that the disputed cheque was not encashed on account of insufficient funds in the bank account of the applicant against which the disputed cheque was issued. The law on the subject now stands crystallized and it is by now well established that the liability arising out of a disputed cheque is primarily against the person, who has issued the cheque. In the present case the disputed cheque has been issued by the applicant and therefore, the presumption regarding the payment of the amount payable under the disputed cheque shall be against the signatory of the cheque, who admittedly is the applicant. 11. Mr. Rajiv Lochan Shukla, learned counsel for the applicant submits that the issue before the court below is as to whether there is any liability outstanding against the applicant in lieu of the disputed cheque or not. 11. Mr. Rajiv Lochan Shukla, learned counsel for the applicant submits that the issue before the court below is as to whether there is any liability outstanding against the applicant in lieu of the disputed cheque or not. It is this very question, which can be easily decided in case the witnesses named in the applications dated 29th January, 2018 and 2nd May, 2018 were summoned. Their testimonies would have clearly decided as to whether there is any legally chargeable debt against the applicant. It was in the light of the aforesaid that the summoning of the aforesaid two witnesses was prayed for by the applicant before the court below. Therefore, on the aforesaid facts, it is urged that the reasoning recorded by the court below to reject the applications dated 29th January, 2018 and 2nd May, 2018 filed by the applicant cannot be sustained in law or fact. 12. The arguments made by Mr. Rajiv Lochan Shukla, learned counsel for the applicant appear to be attractive at the first flush. However, on a deeper scrutiny, it is realized that the applications dated 29th January, 2018 and 2nd May, 2018 were engineered only to delay the conclusion of the above mentioned complaint case pending before the court below and giving rise to the present application under Section 482 Cr.P.C. 13. So far as the summoning of Smt. Kumkum Rai is concerned, it may be noted that Smt. Kumkum Rai is the vendee of the registered sale-deed dated 15th July, 2013. The aforesaid sale-deed which is on the record as Annexure S.A.-1 to the supplementary affidavit dated 4th September, 2018 filed by the applicant contains a categorical recital that the amount payable in lieu of the subject matter of the sale-deed dated 15th July, 2013 has been paid by the vendee to the vendor i.e. Rajesh Kumar, the applicant herein. Therefore, indirectly it means that vide application dated 29th January, 2018, an attempt was made to dislodge a registered document. Such an exercise cannot be permitted, when the proceedings giving rise to the present application under Section 482 Cr.P.C. is under Section 138 N.I. Act. The deed of sale dated 15th July, 2013 has not been challenged by the applicant himself in relation to the amount paid nor any rectification of the same has been sought on the ground noted above. The deed of sale dated 15th July, 2013 has not been challenged by the applicant himself in relation to the amount paid nor any rectification of the same has been sought on the ground noted above. The said issue cannot be allowed to be agitated at the behest of the applicant. 14. By means of the application dated 2nd May, 2018, the applicant basically wanted to claim set-off against the disputed cheque issued by him. 15. The grounds urged in both the applications are not liable to be accepted under any circumstance. There is no material on the record to suggest that any payment was made by the applicant to Ram Pravesh. Any exercise to ascertain the same will be going behind the disputed cheque, when admittedly the limited question for consideration before the court below was whether the applicant is liable to pay the amount payable in terms of the disputed cheque or not. Consequently, this Court does not find any error in the view taken by the court below in rejecting the applications dated 29th January, 2018 and dated 2nd May, 2018 filed by the applicant. 16. It is true that the reasonings recorded by the court below for rejecting the applications dated 29th January, 2018 and dated 2nd May, 2018 prima facie do not appear to be correct. However, as noted above, the validity of a registered document cannot be permitted to be challenged nor the plea of set-off can be considered in proceedings under Section 138 N.I. Act. 17. For the reasons given herein above, if the applications filed by the applicant dated 29th January, 2018 and dated 2nd May, 2018 are allowed, the resulting situation will also be illegal. Therefore, this Court does not feel inclined to interfere with the impugned order. As such, the application fails. It is, accordingly, dismissed.