Court No. - 64
Case :- APPLICATION U/S 482 No. - 16920 of 2019 Applicant :- Smt. Munni Devi Opposite Party :- State Of U.P. And Another Counsel for Applicant :- R.K. Mishra Counsel for Opposite Party :- G.A.
Hon'ble Arvind Kumar Mishra-I,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 for quashing the impugned order dated 29.9.2018 passed by the learned Additional Sessions Judge/F.T.C. Varanasi in criminal revision no. 75 of 2018 Smt. Munni Devi Versus State of U.P. and others and quash the summoning order dated 27.11.2017 passed by the learned Additional Chief Judicial Magistrate, Court No.9, Varanasi and to quash the entire proceedings of Complaint Case No. 3992 of 2017 Anoop Kumar Upadhyay Vs. Smt. Munni Devi under section 138 of N.I. Act P.S. Cntt. Varanasi pending in the court of Additional Chief Judicial Magistrate, Court No.9 Varanasi.
Contention is that this case cheque was never issued by the applicant; the account in question belonged to the company- Universal Construction, Varanasi was closed in the year 2015 whereas the post dated cheque has been fabricated. The concerned firm has not been made a party and the applicant has been prosecuted, which cannot be done. Notice was not given to the company/firm in question but it was sent by one Anoop Kumar Upadhyay to the applicant, which is not permissible in law. The entire proceedings is vitiated and liable to be quashed in exercise of power conferred under section 482 Cr.P.C.
The learned counsel placed reliance on Basalingappa Versus mudibasappa 2019 Lawsuit(SC)1037 and Anita Hada Versus State and another 2012STPL(LE)46448 SC.
The learned A.G.A. retorted the aforesaid contention by submitting that bare perusal of the complain dated 12.9.2017, (copy whereof is annexure no. 1 to the application), and bare perusal of the notice issued to the applicant, (a copy whereof is annexure 2 to the affidavit), makes it clear that a loaning transaction was entered into between the parties. Therefore, the factual aspect as placed before this court cannot be gone into on the point of authenticity of notice and fake complaint. These factual aspects can be brought before the court below. Only after scrutiny of facts proper appreciation can be recorded unless this exercise is complete, nothing can be held conclusively at this stage.
I have also perused/ scanned the aforesaid citations of the Hon'ble Supreme Court wherein also on the fact alleged the conclusion was directed to to be drawn in favour of either of the parties.
The facts cannot be appreciated threadbare at this juncture in proceedings under section 482 Cr.P.C. A bare perusal of the second paragraph of the complaint and the first paragraph of the notice discloses enough material at least for summoning the applicant at this juncture. The summoning order has been passed after considering various aspects of the matter, this court at this stage cannot appreciate the factual aspect, like that of the trial court, hence no interference is required by this court.
However, these facts may be agitated before the courts below and aforesaid citation can also be brought to the notice of the lower court concerned, and it may pass appropriate speaking and reasoned order after giving opportunity of hearing to the other side as well.
The observation made above will have no bearing upon the merit of the case.
With the above direction/observation, the instant application under Section 482 Cr.P.C. is finally disposed of.
Order Date :- 29.4.2019 N.A.