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2020 DIGILAW 680 (ALL)

Anurag Dubey v. State Of U. P.

2020-03-03

NAHEED ARA MOONIS

body2020
JUDGMENT : 1. Heard the learned counsel for the applicant and the learned A.G.A. for the State. 2. The instant petition has been filed with a prayer to quash the proceeding of complaint case No. 155 of 2009 (M/s. Radhakishan Kunjbihari Vs. Anurag Dubey) whereby the applicant has been summoned by order dated 24.2.2011 to face trial under Section 138 Negotiable Instrument Act, P.S. Bindaki, district Fatehpur pending in the court of Additional Chief Judicial Magistrate, Court No. 11, Fatehpur. 3. By order dated 16.3.2011 in respect of settlement of dispute between the parties the matter was referred to the Mediation Centre directing the applicant to deposit Rs. 5,000/-towards expenses and in the meantime the proceeding was stayed. It was directed that no coercive steps shall be taken against the applicant in the aforesaid proceeding. From the perusal of the order-sheet it transpires that on 23.5.2011 it was further directed to list the case on 18th July, 2011 and the interim order granted earlier shall be extended till the next date of listing. Thereafter the office has submitted its report on 11.12.2019 that the case is put up for order along with the mediation report though the mediation report had already been submitted by the Mediation Centre on 2.11.2011 with the endorsement that the parties are not willing for mediation as only the applicant had appeared and the opposite party had not appeared and collected the expenses deposited by the applicant at the Mediation Centre. Despite report of the Mediation Centre the petition remained pending and has not been listed and only the case was first time listed on 12.12.2019. Thereafter the report indicates that notice has duly been served upon the opposite party no. 2. Despite service of notice upon the opposite party no.2 he has not appeared and in view of the fact that the mediation has already been failed between the parties, this petition cannot be kept pending for indefinite period at the dint of the interim order. The learned counsel for the applicant has submitted that the applicant has maliciously been prosecuted in the present case. The opposite party no. 2 filed the frivolous complaint that the applicant had given a cheque on 24.4.2007 to the opposite party no. 2 and on being deposited the same was returned on 15.5.2007 as unpaid. The learned counsel for the applicant has submitted that the applicant has maliciously been prosecuted in the present case. The opposite party no. 2 filed the frivolous complaint that the applicant had given a cheque on 24.4.2007 to the opposite party no. 2 and on being deposited the same was returned on 15.5.2007 as unpaid. On 9.8.2007 and 6.9.2007 notices were served upon the applicant but the money was not paid by the applicant and hence the complaint was filed. The learned Magistrate on the basis of the statements of the complainant under Section 202 Cr.P.C. and of the witnesses under Sections 200 Cr.P.C. summoned the applicant in a mechanical manner by the order dated 2.4.2009. 4. It is submitted that the applicant had appeared before the court below and was granted bail on 30.9.2009. The applicant moved an application on 20.1.2010 to drop the proceeding against him but instead of deciding the application, passed the order that it will be decided after the evidence under Section 244 Cr.P.C. is recorded. The applicant raised a plea against the summoning order that the applicant had not issued any cheque to the opposite party no. 2 and the cheque in question was lost on 6.12.2006 and in this regard the applicant had already informed the police on the same day by moving an application before the concerned police station. The complaint was filed on 1.2.2009, which was not filed within time according to the provisions of the Negotiable Instrument Act. The opposite party no.2 has misused the cheque which was lost some where by the applicant. There is no due on the applicant and as such no question arises for issuing cheque to the opposite party no. 2. The court below has committed manifest error in not dropping the proceeding pending against the applicant. 5. The learned A.G.A. has however, submitted that from the perusal of the complaint it is evident that the opposite party no. 2 who is having agency of Kapila Pashu Ahar and running a business in the name and style of M/s Radha Kishan Kunj Bihari the applicant had purchased Pashu Ahar and in lieu of which a cheque was given to the opposite party no. 2 of Rs. 2 who is having agency of Kapila Pashu Ahar and running a business in the name and style of M/s Radha Kishan Kunj Bihari the applicant had purchased Pashu Ahar and in lieu of which a cheque was given to the opposite party no. 2 of Rs. 21,000/-on 28.4.2007 and when the cheque was deposited by the complainant in his account it was returned on 15.5.2017 with the endorsement of insufficient fund in the account and when it was told by the complainant to the applicant that the cheque has been bounced as there is no fund in his account, the applicant had assured that soon money will be returned to the complainant but despite several reminders were sent and lastly when the applicant had refused to give any money on 8.8.2007, hence the notice in writing was given within prescribed period of 15 days despite that neither the money was given nor any reply sent by the applicant and hence the cause of action arises against the applicant and hence the complainant has rightly filed the complaint against the applicant. The learned Magistrate has not committed any procedural illegality in summoning the applicant under Section 138 of Negotiable Instrument Act. 6. It is further contended that the applicant has filed the protest petition against the summoning order, which only indicates that the notice has not been given within the stipulated period and there is no whisper with regard to the loss of cheque as mentioned in the body of the instant petition showing that the applicant he has also filed any application addressing to the concerned Station Officer. It is also very surprising that the cheque in question is of 28.4.2007 whereas the loss of cheque, if any, had taken place on 5.12.2006 of which information was given to the concerned Station Officer on 6.12.2006 and out of missing of ten cheques one cheque is said to have been misappropriated by the opposite party no. 2, thus the defence of the applicant cannot be considered at this stage. 2, thus the defence of the applicant cannot be considered at this stage. The learned court below has rightly rejected the application moved by the applicant as the same is the subject matter of trial after the prosecution evidence is led, the defence evidence will be examined and as such when the mediation has already been failed between the parties the applicant has tried his best to keep the matter pending for such a long period causing mental and financial loss both to the opposite party no.2, hence the applicant does not deserve any indulgence. 7. As the Hon'ble Apex Court in Asian Resurfacing of Road Agency Pvt. Ltd. and others Vs. Central Bureau of Investigation, AIR 2018 SC 2039 has directed that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months unless in an exceptional case by a speaking order such stay is extended, hence the application for extension of stay is dismissed. There is no justifiable reason to extend the interim order, as such the interim order dated 16.3.2011 is hereby vacated. 8. The petition stands dismissed. 9. The trial court is directed to proceed with the case in accordance with law. 10. In case the applicant fails to appear and cooperates with the trial proceeding, court below shall take coercive action against him. 11. The office is directed to communicate this order forthwith to the court concerned through FAX forthwith for necessary information and compliance.