Court No. - 85
Case :- APPLICATION U/S 482 No. - 8832 of 2021 Applicant :- Harsh Dua Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kuldeep Kumar Counsel for Opposite Party :- G.A.
Hon'ble Gautam Chowdhary,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
This application under section 482 Cr.P.C. has been filed with a prayer to quash the impugned revisional court's order dated 15.5.2019 passed by Additional District & Sessions Judge, FTC-2, Gautambudh Nagar in Criminal Revision No. 178 of 2017 (Harsh Dua Vs. Alok Agrawal and another) and impugned summoning order dated 13.09.2017 passed by Second Addl. Chief Judicial Magistrate, Gautambudh Nagar in Complaint Case No. 2650 of 2017 (Alok Agrawal Vs. Harsh Dua), under section 138 N.I. Act, Police Station Sector-20, Gautambudh Nagar.
From a perusal of the affidavit of the application filed by the revisionist, the paragraph nos. 14,16,17,18 and 19 which have been quoted below have not been properly explained:
"14.That it is relevant to mentioned here that applicant is not a drawer of the cheque and has not signed the same. He is only husband of the Anita Dua and she has issued the aforesaid 10 cheque so it is clear that present complaint is not maintainable against the applicant.
16. That it is relevant to mention here that Anita Dua has issued the aforesaid 10cheque in the name of Allied Company as such complaint can be filed by the owner/proprietor of the Allied Company but opposite party No. 2 without any right filed a present complaint against the applicant and without applied the judicial mind learned magistrate has summoned the applicant in under section 138 N.I. Act and revisional court has also not considered the ground of the revision as such both impugned order dated 1.09.2017 and 15.05.2019 are wholly illegal, improper, unjust and same is liable to be quashed by this Hon'ble Court.
17. That Section 138 N.I. Act itself provided that compliant can be filed against the drawer of the cheque and in the present case cheque has been issued by the Anita Dua as such present complaint is not maintainable against the applicant, therefore entire further proceeding of the complaint case No. 2650 of 2017 (Alok Agrawal Vs. harsh Dua), under section 138 N.I. Act, Police Station Sector-20, Noida, District Gautambudh Nagar is liable to be quashed by this Hon'ble Court.
18. that from the perusal of the complaint it is clear that prima facie offence under section 138 N.I. Act is not made out against the applicant and cheque has been issued by the Anita Dua not applicant as such present proceedings is an abuse process of court therefore, entire further proceedings of the Complaint Case No. 650 of 2017 (Alok Agrawal VS. Harish Due) under section 138 N.I. Act, Police Station Sector-20 Noida, District Gautambudh Nagar is liable to be quashed.
19. that applicant is neither owner of the Sania motors Company Nor he is proprietor nor he is partner of the said company nor he is having any joint account with the Anita Dua as such he is not responsible for any liability of the 11 cheque."
Further, from a perusal of the revisional court's order it appears that while deciding the revision itself, the relevant questions of law have not been discussed, which is quoted below:
"5. Yah ki awar nyayalay ke parivaad me dhakhil samast chek Anita Dua ke dwara jaari hona prateet ho rahe hai jo allied distribution ke naam se jaari keye gaye hai. Vipachhi No. 1 ke naam se jaari nahi hai.
6. Yah ki revision karta ke ukt chek se koi talluk, lena dena aur vasta nahi hai, na he uske dwara parivaad me dhakhil samast chek jaari kiya hai.
7. Yah ki vipachhi No. 1 ke dwara diya gaya notice bhi revision kata ke naam par diya gaya hai jab ki prarthi ne vipachhi No. 1 ko koi chek jaari nahi kaya hai."
Considering the facts, circumstances of the case, submission made by learned counsel for the applicant, learned A.G.A. and also looking to the facts that revisional court has not considered the relevant questions of law at the time of deciding the revision, therefore, the matter is remitted back to the court concerned to decide afresh in the light of relevant questions which have been raised by the revisionist within a period of two months from the date of production of certified copy of this order.
Accordingly, this application is allowed Order Date :- 29.7.2021 RPD