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2020 DIGILAW 365 (ALL)

Shahnawaz v. State of U. P.

2020-02-04

MANJU RANI CHAUHAN

body2020
JUDGMENT : MANJU RANI CHAUHAN, J. 1. Supplementary affidavit filed today is taken on record. 2. Heard Sri Mohd. Afzal learned counsel for the applicant, Sri Amit Singh Chauhan, learned A.G.A. for the State and perused the entire record. 3. This application under Section 482 Cr.P.C. has been filed with a prayer to quash the proceedings of Complaint Case No. 1047/2017, under Section 138 of Negotiable Instrument Act (in short, N.I. Act), Police Station Kotwali City, District Bijnor as well as impugned summoning order dated 19.04.2018 passed by Judge Additional Court, Bijnor. 4. Brief facts of the case are that a complaint has been filed with the allegation that the applicant and opposite party no. 2 were having friendly relations to each other, due to this the applicant borrowed Rs. 5,10,000/- in the month of April-May, 2016 from opposite party no. 2. The money was given with the assurance that the same will be returned after two months. The time period of two months elapsed and the applicant did not return the aforesaid money taken by him. A cheque no. 384965 dated 04.05.2017 issued from U.P. Gramin Bank from Account No. 92810100195567 of Rs. 2,00,000/- was given by the applicant to the complainant. However, the date on the cheque was filled as 25.09.2017. The applicant asked the complainant to present the cheque stating that by that time he will be having the said amount in his account. Believing the applicant, the cheque was presented on 25.09.2017 at Kotak Mahindra Bank, but the same was returned on 11.10.2017 due to "insufficient funds." When the complainant inquired about the same, no specific reply was given, therefore, notice was given on 07.11.2017 to the accused and since neither the reply was given nor any money was returned, after the legal notice being given to the accused the complaint was filed. 5. It has been contended by learned counsel for the applicant that the applicant has been summoned without following the procedure as laid down in the case of J.V. Baharuni, Giriraj Proteins Pvt. Ltd. Baldevbhai Ramjibhai Patel vs. State of Gujarat, D.M. Finance, Vishnubhai Hargovinddas Patel, 2014 (10) SCC 494 . It has further been submitted that the order sheet of the trial court, which has been appended as Annexure no. SA-1 to this supplementary affidavit in support of this petition, reflects that the procedure has not been followed. It has further been submitted that the order sheet of the trial court, which has been appended as Annexure no. SA-1 to this supplementary affidavit in support of this petition, reflects that the procedure has not been followed. He has referred to Paragraph No. 61 of the aforesaid judgment, which is reproduced herein-below:- "61. However, to summarise and answer the issues raised herein, following directions are issued for the Courts seized off with similar cases: 1. All the subordinate Courts must make an endeavour to expedite the hearing of cases in a time bound manner which in turn will restore the confidence of the common man in the justice delivery system. When law expects something to be done within prescribed time limit, some efforts are required to be made to obey the mandate of law. 2. The learned Magistrate has the discretion under Section 143 of the N.I. Act either to follow a summary trial or summons trial. In case the Magistrate wants to conduct a summons trial, he should record the reasons after hearing the parties and proceed with the trial in the manner provided under the second proviso to Section 143 of the N.I. Act. Such reasons should necessarily be recorded by the Trial Court so that further litigation arraigning the mode of trial can be avoided. 3. The learned Judicial Magistrate should make all possible attempts to encourage compounding of offence at an early stage of litigation. In a prosecution under the Negotiable Instruments Act, the compensatory aspect of remedy must be given priority over the punitive aspect. 4. All the subordinate Courts should follow the directives of the Supreme Court issued in several cases scrupulously for effective conduct of trials and speedy disposal of cases. 5. Remitting the matter for de novo trial should be exercised as a last resort and should be used sparingly when there is grave miscarriage of justice in the light of illegality, irregularity, incompetence or any other defect which cannot be cured at an appellate stage. The appellate Court should be very cautious and exercise the discretion judiciously while remanding the matter for de novo trial. 6. The appellate Court should be very cautious and exercise the discretion judiciously while remanding the matter for de novo trial. 6. While examining the nature of the trial conducted by the Trial Court for the purpose of determining whether it was summary trial or summons trial, the primary and predominant test to be adopted by the appellate Court should be whether it was only the substance of the evidence that was recorded or whether the complete record of the deposition of the witness in their chief examination, cross examination and re-examination in verbatim was faithfully placed on record. The appellate Court has to go through each and every minute detail of the Trial Court record and then examine the same independently and thoroughly to reach at a just and reasonable conclusion." 6. It has further been contended by learned counsel for the applicant that the concerned court below, while passing the summoning order dated 19.04.2018, treated the complaint filed by the complainant-opposite party no. 2 as a complaint case and proceeded with the same as a complaint case. However, no reason has been recorded in the order dated 19.04.2018 as to why a departure has been made from the procedure provided under Section 138 of N.I. Act. Although the petitioner had filed a discharge application, which has been rejected by the court below vide order dated 19.04.2018 but the learned counsel for the petitioner submits that the petitioner should not suffer for fault on the part of lawyers, who had not taken such a ground before the court concerned. Learned counsel for the petitioner, therefore, submits that once the Apex Court in the case of J.V. Baharuni, Giriraj Proteins Pvt. Ltd. Baldevbhai Ramjibhai Patel (Supra) has issued direction to all the courts in India to strictly comply with the directions contained in the aforesaid case, no exception can be carved out by the court below to the same. It is, thus, contended that since the summoning order passed by the court below without following the procedure as laid down in the case of J.V. Baharuni, Giriraj Proteins Pvt. Ltd. Baldevbhai Ramjibhai Patel (Supra), the same cannot be sustained and is, therefore, liable to be quashed. 7. It is, thus, contended that since the summoning order passed by the court below without following the procedure as laid down in the case of J.V. Baharuni, Giriraj Proteins Pvt. Ltd. Baldevbhai Ramjibhai Patel (Supra), the same cannot be sustained and is, therefore, liable to be quashed. 7. In support of his contention, learned counsel for the applicant has also relied upon the judgment passed in Application u/s 482 No. 30953 of 2018, Bali Ram @ Vinod Kumar vs. State of U.P. and Others and Matter under Article 227 No. 9655 of 2019, Atausalam @ Chhote vs. State of U.P. and Another. 8. Per contra, learned A.G.A. for the State has opposed the contention raised by the learned counsel for the applicant by submitting that the disputed cheque was issued by the applicant but the same have been dishonoured. Therefore, the opposite party no. 2 was right in proceeding against the applicant by filing a complaint under Section 138 N.I. Act. 9. Consequently, the present criminal misc. application succeeds and is allowed. The impugned summoning order dated 19.04.2018 passed by Judge, Additional Court, Bijnor is hereby, set aside. The matter is remanded to the Judge, Additional Court, Bijnor to decide the summoning of the applicant afresh in light of the judgment of the Apex Court in the case of J.V. Baharuni, Giriraj Proteins Pvt. Ltd. Baldevbhai Ramjibhai Patel (Supra) within a period of one month from the date of production of a certified copy of this order.