Court No. - 40
Case :- APPLICATION U/S 482 No. - 43285 of 2018 Applicant :- Ms. Naina Gupta And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Bachchu Lal Yadav Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
This application under Section 482, Cr.P.C. has been filed for quashing the entire proceedings of Complaint Case No.2594 of 2014 (M/s Silvertone Networks Vs.M/s Sai & Company and others), under Section 138 N.I. Act, pending in the court of Addl.Chief Judicial Magistrate, Gautambudh Nagar as well as summoning order dated 23.01.2016.
The contention of the counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. Opposite party no.2 has filed complaint dated 13.11.2014 against the applicants on the false allegations. No notice or information was given to the applicant no.1 about the dishonour of cheque. Summoning order is illegal and arbitrary.
From the perusal of the 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 the applicants. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. On the face of evidence on record, there is no illegality in the summoning order dated 23.01.2016.
The prayer for quashing the proceedings and summoning order is refused.
However, it is provided that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, then the bail application of the applicants 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 judgment 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 applicants do 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 :- 30.11.2018/SKD