Court No. - 75
Case :- APPLICATION U/S 482 No. - 42848 of 2019 Applicant :- Nitish Kumar Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dinesh Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Gupta,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 by the applicant for quashing of the summoning order dated 25.10.2018, Non-bailable warrant order dated 21.01.2019 as well as the entire proceedings of Complaint Case No.871 of 2018 (Abhishek Kumar Singh Vs. Nitesh Kumar Singh), under Section 138 of N.I. Act, P.S. Robertsganj, District Sonbhadra, pending in the Court of Chief Judicial Magistrate, Sonbhadra.
As per the allegations made in the complaint, it is alleged that the applicant has issued a Cheque No.000003 amounting to Rs.60,000/- dated 05.04.2018 to Opposite Party No.2., however, on presentation of the said cheque before the Bank for payment the same was dishonoured. After the dishonour of the cheque, a notice was sent to the applicant to make good the payment however, despite being noticed the due amount was not paid as such, the present complaint has been filed.
On the basis of the said complaint, learned Magistrate has recorded the statements of the witnesses and after making the requisite enquiry under Sections 200 and 202 CrPC passed the summoning order against the applicant to face trial under Section 138 of Negotiable Instrument Act vide order dated 25.10.2018.
Learned counsel for the applicant has submitted that the signature on the cheque is disputed as also no due debt or liability exists and therefore, the proceedings under Section 138 of Negotiable Instrument Act cannot be drawn against him.
Learned counsel for the applicant has next submitted that procedure as prescribed under Section 204 of N.I. Act has not properly been followed by the the learned Magistrate and as such, the entire proceedings are liable to be quashed.
Learned counsel for the applicant has placed reliance upon the judgments, in case of Bindeshwari Prasad Singh Vs. Kali Singh reported at AIR 1977 SC 2432, Sujoy Kumar Chandra Vs. Damayanti Manjhi and Ors. reported at 2014 (1) ACR 1129 passed by Apex Court as well as in the case of Surendra Sharma Vs. State of U.P. and Ors. passed by this Hon'ble High Court.
Per contra; learned A.G.A. has supported the impugned order and submitted that learned Magistrate after taking into consideration the allegations made in the complaint and the statements recorded under Sections 200 and 202 CrPC has passed the summoning order against the applicant to face trial under Section 138 of Negotiable Instrument Act. The disputed question of fact whether the signature being forged and the existence of any due debt or liability cannot be determined at this stage when the evidence is yet to come. Therefore, the impugned order passed by the court below does not suffer from any illegality or infirmity and do not call for any interference.
Having considered the rival submissions made by the counsel for the parties and taking into consideration the fact that the impugned order has been passed by the learned Magistrate on the basis of allegations made in the complaint and after making the requisite enquiry under Sections 200 and 202 CrPC. The disputed question of fact whether whether the signature being forged and the existence of any due debt or liability cannot be determined at this stage when the evidence is yet to come. The cases, on which learned counsel for the applicant has placed reliance, are distinguishable on facts from the present case. As such impugned order passed by the learned Magistrate is just, proper and legal and do not call for any interference.
The present application under Section 482 is devoid of merit and is accordingly dismissed.
Order Date :- 28.11.2019 Zafar