Court No. - 15
Case :- APPLICATION U/S 482 No. - 25054 of 2018
Applicant :- Ajay Joshi
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Durga Prasad Tiwari,Vidya Kant Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Durga Prasad Tiwari, learned counsel for the applicant and Sri Prashant Kumar, learned A.G.A. for the State and perused the material brought on record.
This application under Section 482 Cr.P.C. has been filed seeking the quashing of impugned summoning order dated 04.08.2012 and N.B.W. dated 20.02.2016 passed by learned Special Chief Judicial Magistrate, Kanpur Nagar as well as entire criminal proceeding in Complaint Case No. 633 of 2012 under Section 138 N.I. Act, Police Station Kotwali, District Kanpur Nagar pending in the court of learned Special Chief Judicial Magistrate, Kanpur Nagar.
Learned counsel for the applicant contends that he is not a director of the company in question and he has not issued any cheque as alleged in the complaint. Further it is stated that N.B.W. was issued against him on 20.02.2016 and he could come to know about the issuance of the N.B.W. only on 10.05.2018 from his neighbour, hence it is also prayed that N.B.W. be quashed.
Since the allegation against the accused applicant is that the cheque issued by him has bounced and, accordingly, accused O.P. No.2 has initiated proceedings under Section 138 N.I. Act and the applicant was directed to appear initially on 12.09.2012 since, thereafter, he has not appeared before the court below not did he get himself bailed out, therefore, no infirmity is there in the N.B.W. issued by the court below because it is issued only to procure his attendance.
As regards other facts with respect to the quashing of the proceedings, from the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R.
P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
The prayer for quashing the proceedings is refused.
However, it is provided that if the applicant appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail may be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 23.8.2018
A. Mandhani