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2023 DIGILAW 1648 (ALL)

Shubham Shukla v. State of U. P.

2023-07-11

SANJAY KUMAR SINGH

body2023
JUDGMENT Sanjay Kumar Singh, J. Heard learned counsel for the applicant, learned Additional Government Advocate for the State of U.P./opposite party no.1 and perused the record. 2. This application under Section 482 Cr.P.C. has been filed by the applicant to quash the summoning order dated 04.07.2022 and proceedings of case no. 16/IX/2022 (Virendra Kumar v. Shubham Shukla), under section 138 of The Negotiable Instruments Act, Police Station Kotwali Nagar, District Banda, pending in the court of Special Judicial Magistrate-I, Banda. 3. In short compass, the prosecution case is that the opposite party no. 2 has filed a complaint under Section 138 N.I. Act dated 03.11.2021/30.11.2021 against the applicant alleging inter-alia that in January 2019, applicant borrowed a sum of Rs. 10 lac from the opposite party no. 2 on the promise that the same shall be returned in October, 2020. The applicant, in order to discharge his liability, gave a cheque no. "009519" dated 29.10.2020 of Rs. 10 lac to the opposite party no. 2 but on presenting the said cheque in the bank on 27.01.2021, it was dishonoured on 12.04.2021. Thereafter, the information about the dishonour of the cheque was immediately given by the opposite party no. 2 to the applicant but due to Covid-19 lock-down, applicant took a time upto 30.09.2021 for the payment. Later on, he did not pay the said amount to the opposite party no. 2. Thereafter on the believe that the applicant is not inclined to make payment, the opposite party no. 2 sent a notice through his counsel to the applicant by registered post dated 07.10.2021 but the applicant neither paid the cheque amount nor give any reply. Thereafter the opposite party no. 2 filed a complaint along with an application under Section 5 of Limitation Act on 30.11.2021. On the said complaint, the concerned court below summoned the applicant vide order dated 04.07.2022 after following/completing the proceeding under Section 200 and 202 Cr.P.C. 4. It is submitted by learned counsel for the applicant that the applicant and opposite party no. 2 were having good business relationship, therefore, the cheque in question was given to the opposite party no. 2 in business transaction for guarantee but after completion of business transaction, the opposite party no. 2 did not return his cheque and misuse the cheque by producing the same in the bank. 2 were having good business relationship, therefore, the cheque in question was given to the opposite party no. 2 in business transaction for guarantee but after completion of business transaction, the opposite party no. 2 did not return his cheque and misuse the cheque by producing the same in the bank. It is also submitted that the cheque was given by the applicant to the opposite party no. 2 on 28.10.2020 but the same was presented by the opposite party no. 2 on 29.01.2021, therefore, there is a violation of section 138(a) of N.I. Act. It is further submitted that the cheque, which was presented by the opposite party no. 2 in the bank, was returned by the bank on 30.01.2021 but required notice was given by the opposite party no. 2 after eight months and the complaint was filed on 30.11.2021 which is violative of section 138 (b)(c) of N.I. Act, therefore, the impugned summoning order dated 04.07.2022 is liable to be quashed. 5. On the other hand, learned A.G.A. refuting the submission of learned counsel for the applicant submits that the issuance of the cheque by the applicant in favour of complainant is not disputed. The fact that the cheque has been dishonoured is also not disputed, hence, there is no illegality in summoning the accused-applicant to face trial in the light of presumption under section 139 of the N.I. Act. 6. After having heard the submissions of the learned counsel for the parties and perusing the record, I find that as per contents of the complaint, cheque dated 28.10.2020 was presented by the opposite party no. 2 on 27.01.2021 in the bank within three months', hence there is no violation of section 138(a) of N.I. Act as the limitation for presenting the cheque in the bank is within a period of three months. As per the case of the prosecution, information about the dishonour of the cheque was given by the bank to the opposite party no. 2 on 12.04.2021. Thereafter he immediately informed the applicant about dishonour of the cheque on which due to Covid-19 lockdown, applicant took time to pay the cheque amount up to September 2021. When after waiting up to 30.09.2021, applicant did not pay the amount, legal notice was sent by registered post on 07.10.2021 but the applicant neither paid the cheque amount nor given any reply. When after waiting up to 30.09.2021, applicant did not pay the amount, legal notice was sent by registered post on 07.10.2021 but the applicant neither paid the cheque amount nor given any reply. Thereafter the complaint has been filed along with the application under Section 5 of Limitation Act. In this regard, it would be relevant to mention that prior to 2002, proviso to section 142(b) of N.I. Act had not found place in the N.I. Act. On the basis of statement of objects and reasons appended to the Amendment Bill, 2002, proviso to section 142 (b) of N.I. Act was inserted by Act No. 55 of 2002 w.e.f. 6.2.2003, whereby additional power has been conferred upon the court to take cognizance even after expiry of period of limitation by conferring on it a discretion to waive the period of one month. 7. This Court is of the view that the appreciation of evidence is a function of the trial court. This Court in exercise of power under Section 482 Cr.P.C. cannot assume such jurisdiction and put to an end to the process of trial provided under the law. It is also settled by the Apex Court in catena of judgments that the power under Section 482 Cr.P.C. at pre-trial stage should not be used in a routine manner but it has to be used sparingly, only in such an appropriate cases, where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings or where allegations made in complaint and the materials relied in support of same, on taking their face value and accepting in their entirety do not disclose the commission of any offence against the accused. Power under Section 482 of the Code of Criminal Procedure cannot be exercised where the allegations are required to be proved in court of law. The disputed questions of facts and defence of the accused cannot be taken into consideration at this pre-trial stage, which can be more appropriately gone into by the trial court at the appropriate stage. 8. This Court does not find that this case fall in a categories as recognized by the Apex Court for quashing the criminal proceeding of the trial court at pre-trial stage. Considering the facts, circumstances and nature of allegations against the applicant in this case, the cognizable offence is made out. 8. This Court does not find that this case fall in a categories as recognized by the Apex Court for quashing the criminal proceeding of the trial court at pre-trial stage. Considering the facts, circumstances and nature of allegations against the applicant in this case, the cognizable offence is made out. At this stage it would not be appropriate to adjudge whether the case shall ultimately end in conviction or not. Only prima-facie satisfaction of the Court about the existence of sufficient ground to proceed in the matter is required. The impugned criminal proceeding under the facts of this case cannot be said to be abuse of the process of the Court. There is no good ground to invoke inherent power under Section 482 Cr.P.C. by this Court. 9. The relief as sought by the applicant through the instant application is hereby refused. 10. This application under Section 482 Cr.P.C. lacks merit and is, accordingly, dismissed.