Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 2121 (ALL)

Sushila Devi v. State of U. P.

2023-09-11

RAJIV GUPTA

body2023
JUDGMENT Rajiv Gupta, J. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. 2. The present application under Section 482 Cr.P.C. has been filed for quashing summoning order dated 17.10.2022 as well as entire proceedings of Criminal Complaint Case No. 12873 of 2022 (Santosh Kumar Singh v. Sushila Devi), under section 138 of N.I. Act, P.S. Shadiyabad, District Ghazipur, pending in the court of Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No.12, Ghazipur. 3. As per the allegations made in the complaint, it is alleged that the applicant had issued a Cheque No. 015988 dated 01.02.2022 for a sum of Rs.8,00,000/- in favour of Opposite Party No.2, however, on presentation of the said cheque, the same was dishonoured by the bank and returned back. After the dishonour of the cheque, a notice was sent to the applicant to make good the payment however, despite being noticed, the due amount was not paid as such, the present complaint under section 138 of N.I. Act has been instituted against the applicant. 4. On the basis of the said complaint, the complainant has given his evidence on an affidavit and the learned Magistrate after making the requisite enquiry under Sections 202 CrPC has summoned the applicant to face trial under Section 138 of Negotiable Instrument Act vide order dated 17.10.2022. 5. Being aggrieved and dissatisfied by the said order, the present application under Section 482 Cr.P.C. has been filed by the applicant. 6. Learned counsel for the applicant has submitted that the cheque in question is said to have been issued by the applicant in lieu of Rs.8,00,000/- paid by opposite party no.2 in cash, however, he has submitted that the factum of payment of Rs.8,00,000/-, in cash, appears to be wholly improbable and cannot be believed by a man of ordinary prudence, as such, the very genesis of the case for prosecuting the applicant under section 138 of the N.I. Act does not arise at all. He has further submitted that no due debt or liability exists in respect of the payment of the said cheque amount, as such, proceedings under section 138 of N.I. Act cannot be drawn against the applicant. 7. He has further submitted that no due debt or liability exists in respect of the payment of the said cheque amount, as such, proceedings under section 138 of N.I. Act cannot be drawn against the applicant. 7. Learned counsel for the applicant has next submitted that the cheque in question was never given to opposite party no.2 rather to one Randheer Singh as a 'security', which has been misused by opposite party no.2. He has further submitted that the reason for dishonour of the cheque as mentioned in the return memo of the bank is 'Account closed' and as such, proceedings under section 138 of the N.I. Act cannot be drawn against him. 8. Per contra, learned AGA has supported the impugned summoning order dated 17.10.2022 and has submitted that the learned Magistrate on the basis of allegations made in the complaint and after making the requisite enquiry under section 200 (based on an affidavit) and 202 Cr.P.C., has summoned the applicant to face trial under section 138 of the N.I. Act. 9. Learned A.G.A. has further submitted that the disputed question of fact that an amount of Rs.8,00,000/- was given to the applicant, in cash, in lieu of which the cheque in question has been issued, cannot be determined at this stage when the entire evidence is yet to come and can only be looked into during trial. Further, the factum whether any due debt or liability exists in respect of the cheque in question also cannot be determined at this stage, when the entire evidence is yet to come. He has further drawn the attention of the court to the provisions contained in section 139 of the N.I. Act, which provides for presumption in favour of holder of the cheque and has stated that in view of the said presumption, the impugned order passed by the court below is just proper and legal and do not call for any interference. 10. He has further submitted that from the bare perusal of the cheque in question, it is crystal clear that the said cheque has been issued in the name of opposite party no.2 Santosh Kumar Singh, the drawee of the cheque/complainant and has been duly signed by the applicant. The contrary assertion made in this respect is wholly untenable and is liable to be repelled. 11. The contrary assertion made in this respect is wholly untenable and is liable to be repelled. 11. Learned AGA has next submitted that in view of the settled law laid down by the Hon'ble Apex Court in several of its decisions, even where the cheque is dishonoured for the reasons 'account closed', then too proceedings under the N.I. Act can very well be drawn against the applicant and as such, in the backdrop of the aforesaid circumstances, the impugned summoning order passed by the court below dated 17.10.2022 is just proper and legal and do not call for any interference and the entire proceedings based on the complaint cannot be nipped in the bud at this stage. 12. Having considered the rival submissions made by the counsel for the parties and from the perusal of the record, it is evident that the cheque in question has been issued by the applicant in favour of opposite party no.2, which has been duly signed by her. The disputed question of fact whether the amount of Rs.8,00,000/- in cash has been paid by the opposite party no.2 to the applicant, in lieu of which the cheque has been issued, cannot be determined at this stage when the entire evidence is yet to come and shall be considered by the trial court during the course of trial. Furthermore, the question whether any due debt or liability exists against the applicant in respect of payment of cheque in question is also a disputed question of fact, based on rebuttable presumption under section 139 of the N.I. Act, which clearly provides for presumption in favour of the holder of the cheque. 13. In view of the aforesaid facts and circumstances, the impugned order dated 17.10.2022, summoning the applicant to face trial under section 138 of the N.I. Act is just proper and legal and do not call for any interference at this stage. Further, the entire proceedings, based on a valid complaint cannot be scuttled at this stage and nipped in the bud when the entire evidence is yet to come. 14. In view of the foregoing discussion, I am of the considered opinion that there is no reason to interfere in the instant case in exercise of power under Section 482 Cr.P.C. 15. The present application under Section 482 Cr.P.C. is devoid of merits and is accordingly dismissed.