Court No. - 83
Case :- APPLICATION U/S 482 No. - 13526 of 2021 Applicant :- Himanshu Pal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Chandra Dutt Counsel for Opposite Party :- G.A.,Irshad Ahmad
Hon'ble Rajeev Misra,J.
Heard Mr. Chandra Dutt, learned counsel for applicant and learned A.G.A. for State.
Perused the record.
This application under Section 482 Cr.P.C. has been filed challenging summoning order dated 22.02.2021 passed by Metropolitan Magistrate, Court No. 2, Kanpur Nagar in Complaint Case No. 23956 of 2020 (Rajesh Kumar alias Ashish Vs. Himanshu Pal), under Section 138 N.I. Act, Police Station Chakeri, District Kanpur Nagar, as well as entire proceedings of above mentioned complaint case.
Learned counsel for applicant contends that applicant is innocent. Applicant has been falsely implicated in above mentioned Case Crime number. Allegations made in complaint are false and concocted.
Learned counsel for applicant has then invited attention of Court to the reply sent by applicant through registered post in response to the legal notice sent by complainant/opposite party 2. He has referred to paragraph 7 of the reply and on basis thereof he contends that there is no legally chargeable debt against applicant. Hence, proceedings under Section 138 N.I. Act initiated against applicant cannot be sustained, on the aforesaid premise, learned counsel for applicant contends that present criminal proceedings are not only malicious, but also an abuse of process of Court. Consequently, same are liable to be quashed by this Court.
Per contra, learned A.G.A. has opposed this application. Learned A.G.A. contends that allegations made in paragraph 7 of the reply sent by applicant to complainant/opposite party 2 in response to the legal notice sent by him relates to the disputed defence of applicant, which cannot be adjudicated upon in proceedings under Section 482 Cr. P. C.
When confronted with above, learned counsel for applicant could not overcome the same.
Having heard learned counsel for applicants, learned A.G.A. for State and upon perusal of material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against applicant. All the submissions made at the Bar relate to the disputed defence of the applicant, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. This Court in exercise of its jurisdiction under section 482 Cr.P.C. cannot appraise or appreciate evidence to record a finding one way or the other. Such an exercise can be undertaken only by trial court upon trial of above mentioned criminal case. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.)283.
In view of above, application fails and is liable to be dismissed. It is, accordingly dismissed.
Order Date :- 27.9.2021 HSM