Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 259 (ALL)

Ashok Kumar Diwedi v. State of U. P.

2023-01-25

SAMIT GOPAL

body2023
JUDGMENT : SAMIT GOPAL, J. 1. List revised. 2. Heard Sri Dharmendra Kumar Srivastava, learned counsel for the applicant, Sri Vivek Mishra, learned counsel for the opposite party No. 2, Ms. Arti Agarwal, learned counsel for the State and perused the record. 3. Sri Vivek Mishra states that he has filed his vakalatnama on behalf of the opposite party No. 2 today in the office. The same is not on record. Office to restore the same in the file and make a note about it in the order sheet. 4. The present application under Section 482 Cr.P.C. has been filed by the applicant-Ashok Kumar Diwedi with the following prayers: “It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to quash whole proceeding of the Complaint Case No. 9369/2021, Rakesh Kumar Chaturvedi vs. Ashok Kumar Diwedi, U/S 138 of N.I. Act, pending in the court of Chief Judicial Magistrate, Auraiya and to quash the impugned summoning order dated 13.07.2022 passed by Chief Judicial Magistrate in Complaint Case No. 9369/2021, Rakesh Kumar Chaturvedi vs. Ashok Kumar Diwedi, U/S 138 of N.I. Act, Police Station Auraiya, District Auraiya. It is further prayed that this Hon'ble Court may graciously be pleased to stay further proceedings of the Complaint Case No. 9369/2021, Rakesh Kumar Chaturvedi vs. Ashok Kumar Diwedi, U/S 138 of N.I. Act, pending in the court of Chief Judicial Magistrate, Auraiya, District Auraiya, during pendency of the present application; otherwise the applicant shall suffer an irreparable loss. And/or pass such other or further order as this Hon'ble Court may deem fit and proper in facts of the case.” 5. The facts of the case is that a complaint dated 16.12.2021 was filed by the opposite party No. 2 against the applicant with the allegations that the cheque dated 03.08.2021 for Rs.9,20,800/- drawn in his favour stood dishonoured by the bank on 30.10.2021. The bank vide its memo informed him about it after which a notice dated 10.11.2021 was given to the accused-applicant but in spite of the same money has not been given to him and then he has filed the present case. The bank vide its memo informed him about it after which a notice dated 10.11.2021 was given to the accused-applicant but in spite of the same money has not been given to him and then he has filed the present case. In support of the complaint, he has filed his evidence in the form of an affidavit dated 16.12.2021 as a statement under Section 200 Cr.P.C. The trial court after going through the records summoned the accused-applicant for the offence under Section 138 Negotiable Instruments Act vide order dated 13.07.2022. The present application has thus been filed with the aforesaid prayers. 6. Learned counsel for the applicant argued that the proceedings as initiated against the applicant are an abuse of process of court. It is argued that there is no legally enforceable debt upon the applicant. It is further argued that the complainant has not complied with the provisions of Section 204(2) Cr.P.C. by submitting list of his witnesses. It is argued while placing para-10 of the affidavit that as a matter of fact the applicant had borrowed Rs.20,800/- from the opposite party No. 2 and had tried to refund the same through cheque but the said cheque was stolen and there was interpolation by adding figure 9 and nine lakhs in words before twenty thousand eight hundred and then the said cheque was presented for encashment in the bank. It is argued that the applicant informed the bank about theft of the said cheque vide his letters dated 23.09.2021 and 11.11.2021. It is argued while placing Para-11 of the affidavit that the said cheque was misused and presented in the bank. The applicant also filed an application under Section 156(3) Cr.P.C. pertaining to the same which was treated as a complaint vide order dated 29.10.2022 passed by the concerned trial court. It is argued that the version of the complaint that Rs.8,10,000/- was borrowed out of which Rs.50,000/- were paid and then a cheque of Rs.9,20,800/- was given, is totally concocted version as the complainant is not a registered money lender under the provisions of U.P. Regulation of Money Lending Act, 1976. It is argued that there has been interpolation in the said cheque. It is further argued that the provisions of Section 56 and 58 of Negotiable Instruments Act have not been complied with which were mandatory to be complied with. It is argued that there has been interpolation in the said cheque. It is further argued that the provisions of Section 56 and 58 of Negotiable Instruments Act have not been complied with which were mandatory to be complied with. It is argued that even the fact that whether there was a legally enforceable debt, was to be looked into by the court concerned. Further it is argued that the trial court vide its order dated 13.07.2022 although has summoned the applicant but the said order is without any application of mind inasmuch as the trial court has stated that on perusal of records there is a prima facie case for summoning the accused under Section 138 N.I. Act, which is an illegal approach as the trial court should have passed a detailed and speaking order recording reasons why it chooses to issue summons and what is the prima facie case against the applicant and as such the said order deserves to be set aside. 7. Per contra, learned counsel for the opposite party No. 2 vehemently opposed the prayer for quashing and argued that the present dispute relates to dishonour of cheque of amount of Rs.9,20,800/-. The summoning order dated 13.07.2022 clearly mentions case of the complainant and further states that the court has gone through the evidence of the complainant and the documents annexed with the complaint and has then reached to a conclusion that a prima facie case is made out and summoned the accused. It is argued that in so far as the case of applicant that there is no legally enforceable debt is concerned, the same needs to be taken in the trial as the same is a matter of fact. It is further argued that in so far as the arguments relating to noncompliance of provisions of Sections 56 and 58 of N.I. Act are concerned, the same also has to be taken up in the trial. It is argued that the case of the applicant in the present application is that his cheque was stolen but the same is defense which needs to be taken at the stage of trial. It is argued that present application is devoid of merit and deserves to be dismissed. 8. Learned counsel for the State also opposed the prayer for quashing and adopted the arguments of learned counsel for the opposite party No. 2. 9. It is argued that present application is devoid of merit and deserves to be dismissed. 8. Learned counsel for the State also opposed the prayer for quashing and adopted the arguments of learned counsel for the opposite party No. 2. 9. After having heard learned counsels for the parties and perusing the records, it is evident that the allegation in the complaint is of a cheque of the applicant being dishonoured after which notice was given to him and in failure to pay the amount, a complaint was filed on which evidence of complainant was taken under Section 200 Cr.P.C. on affidavit. Subsequently the trial court vide its order dated 13.07.2022 summoned the applicant. Perusal of the order dated 13.07.2022 shows that the trial court has considered the matter after going through the complaint and the evidence in support of it filed by the complainant and has then passed a detailed and speaking order recording its satisfaction that a prima facie case is made out and has summoned the applicant to face trial. In so far as question of theft of cheque and question of legally enforceable debt are concerned, the same need to be taken up in the trial at the appropriate stage. This court does not find any irregularity and illegality in order impugned dated 13.07.2022 summoning the accused-applicant. It is trite law that at the stage of summoning only a prima facie case case is to be seen. 10. In the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, 1998 (5) SCC 749 , the Apex Court relying upon the ratio laid down by it in Bhajan Lal's case (supra) has held that power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. In the case of Daxaben vs. State of Gujarat, 2022 SCC Online SC 936 the Apex Court has held that in exercise of power under section 482 of the Cr.P.C. 1973 the Court does not examine the correctness of the allegation in the complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence. 11. 11. In the case of U.P. Pollution Control Board vs. Bhupendra Kumar Modi, 2009 (2) SCC 147 , Fiona Shrikhande vs. State of Maharashtra, 2013 (14) SCC 44 , Sonu Gua vs. Deepak Gupta and Others, 2015 (3) SCC 424 it has been held that while issuing summons to accused u/s 204 Cr.P.C. the Magistrate has only to see whether allegations made in complaint are prima facie sufficient to proceed against the accused. Magistrate need not enquire into merits or demerits of case. 12. In the cases of Bhushan Kumar vs. State of NCT of Delhi, 2012 (2) SCC 424, Nupur Talwar vs. CBI, 2012 (11) SCC 465 , Dy. Chief Controller vs. Roshanlal Agarwal, 2003 (4) SCC 139 and Kanti Bhadra Shah vs. State of West Bengal, 2000 (1) SCC 722 it has been held by the Apex Court that in determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of enquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. There is no legal requirement imposed on a magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order. Section 204 Cr.P.C. does not mandate the Magistrate to explicitly state the reasons for issuance of summons. 13. Further in the case of Priti Saraf and Another vs. State of NCT of Delhi and Another, 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. relying upon the judgments rendered by the Apex Court in the cases of State of Haryana and Others vs. Bhajan Lal and Others, (1992) Supp. 13. Further in the case of Priti Saraf and Another vs. State of NCT of Delhi and Another, 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. relying upon the judgments rendered by the Apex Court in the cases of State of Haryana and Others vs. Bhajan Lal and Others, (1992) Supp. (1) SCC 335 and Arnab Manoranjan Goswami vs. State of Maharashtra and Others, 2021 (2) SCC 427 has held that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception. 14. Thus, it is trite law that at the stage of quashing only the material of the prosecution has to be seen and the court cannot delve into the defence of the accused and then proceed to examine the matter on its merit by weighing the evidence so produced. The disputed questions of facts of the case cannot be adjudged and adjudicated at this stage while exercising powers under Section 482 Cr.P.C. and only the prima facie prosecution case has to be looked into and as it is. Evidence needs to be led to substantiate the defence of the accused. 15. Looking to the facts of the case, law on the subject and also there are disputed questions of fact, the same cannot be adjudged and decided in a petition under Section 482 Cr.P.C. no case for interference is made out. 16. The present application under Section 482 Cr.P.C. is thus dismissed.