1. Heard Sri Digvijay Singh, learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P. and Sri Alok Kumar Srivastava, Advocate holding brief of Sri Dinesh Kumar Chaudhary, learned counsel for opposite party no. 2.
2. The applicant by means of the present application under section 482 Cr.P.C. has challenged the legality and validity of the order dated 28/08/2019 passed by the Sessions Judge, Balrampur in Criminal Revision number 42/2019 whereby while dismissing the revision the revisional Court has not found any infirmity with the order dated 27/04/2019 passed by the Civil Judge (Senior Division), F.T.C/Additional Chief Judicial Magistrate, Balrampur who had rejected the application for discharge moved by the applicant.
3. It has been submitted by the learned counsel of the applicant that the complainant was lodged by the opposite party no. 2, under Section 138 of the Negotiable Instruments Act. In the said complaint it was alleged that the complainant had given large sums of money to the applicant between 2009-2013. The applicant had repaid the said amount to the complainant by means of cheque number 21002263 dated 22/05/2015 for an amount of Rs. 8 lakhs in favour of the complainant. When the said cheque was presented by the complainant to his banker, the same was returned with the remarks "fund is insufficient". Consequently on 27/05/2015 the complainant send a notice by registered post through his counsel to the applicant which was returned with the remark that he had refused to take notice, and therefore the complaint was filed which was registered as Complaint Case No. 766/2050 - Sanjay Kumar Modi vs Ram Rang Dubey.
4. Summons were issued on 15/12/2015 to the applicant. Aggrieved by the issuance of summons, the applicant challenged the same by means of the criminal revision which was dismissed, and subsequently an application under Section 482 Cr.P.C. was filed before this Court being Misc. Case No. 3686 of 2017. It was observed by this Court that as the applicant had put in appearance before the trial Court, therefore the petition was disposed of finally giving liberty to the petitioner to move an application for discharge before the trial Court.
5. The applicant thereafter moved an application under Section 245 of the Cr.P.C. for discharge, but the same was dismissed on 27/04/2019. The dismissal order was challenged in criminal revision no. 42/2019 before the Sessions Judge, Balrampur, which has also been rejected by means of the order dated 28/08/2019 which has been impugned in the present application.
6. The order dated 28/08/2019 has been assailed inter alia on the grounds that the trial Court has rejected the discharge application without considering the facts and circumstances of the case, and also without applying judicial mind as mandated under Section 204 (2) Cr.P.C. It has been vehemently urged that the petitioner has been falsely implicated and that there is no primafacie case against him under Section 138 of the Negotiable Instruments Act.
7. The counsel for the private respondent vehemently opposed the application and submitted that a clear case of an offence under Section 138 of the Negotiable Instruments Act has been made out against the applicant inasmuch as, the cheque issued by the applicant has been dishonoured due to insufficiency of funds and subsequently as mandated under the provisions legal notice is also given to the applicant to which he did not respond and nor any payment has been made. He submitted that there is no infirmity in the order passed by the trial Court rejecting the application for discharge and also in the revision and order impugned in the present application and therefore prayed for dismissal of the application.
8. Heard learned counsel for the applicant and perused the record.
9. According to the complaint, a huge sum of money had been given by opposite party no. 2 to the applicant from the year 2009 to 2013. The applicant in order to re-pay the aforesaid debt had given a cheque no. 21002263, dated 22.05.2015, amounting to Rs.8,00,000/- in favour opposite party no. 2, which cheque was allegedly presented to his banker, AXIS Bank, Balrampur in Account No. 9120100156882429, but the said cheque was returned with the endorsement that "funds insufficient". On 27.05.2015, opposite party no. 2 send a legal notice through his counsel, which was returned with the remark "refused to take notice" by the applicant and hence complaint in question was lodged by opposite party no. 2 against the applicant.
10. The summoning order has been assailed on the ground that infact no money was due to be paid by the applicant to opposite party no. 2 and no documents have been annexed by opposite party no. 2 to substantiate his claim. It is the case of the applicant that his bag containing the said cheque was lost and that he has also lodged a report in this regard with the concerned Police Station and it is infact opposite party no. 2 who discovered the said cheque and filled up the amount and presented it to the bank in the most illegal and arbitrary manner.
11. Aforesaid argument of the applicant has also been duly countered by opposite party no. 2. Learned counsel for opposite party no. 2 has submitted that it was an after thought that a report was lodged with the Police with regard to theft of bag by the applicant and in case the cheque has been lost as alleged by the applicant, then in normal circumstances applicant would had informed his banker and made a request for stopping payment, but this was not done, which clearly demonstrates that the story as stated by the applicant has only been set up in his defense as an after thought.
12. In the present case specific and serious allegations have been levelled by the complainant by unequivocally stating that he had been given a cheque by the applicant which was dishonored due to insufficient funds. Learned counsel appearing for opposite party no. 2 has also disclosed the fact that amount in question was payable to him by the applicant. He has also stated that opposite party no. 2 had duly informed the applicant about the dishonour of the cheque and the applicant had not made by response to the said notice, pursuant to which complaint was filed and summons were issued to the applicant.
13. The applicant assailed the summons by filing Criminal Revision No. 1 of 2016 - Ram Rang Dubey Vs. State of U.P., before the Sessions Judge, Balrampur for quashing the summons. The said revision was dismissed by the revisional Court. Against which the applicant filed an application u/s 482 Cr.P.C. before this Court being Misc. Case No. 3686 of 2017, which was disposed of by this Court on 09.02.2018, with liberty to the petitioner to move an application for discharge before the trial Court. In pursuance to the said order the applicant moved an application for discharge under Section 245 Cr.P.C., which was dismissed by the trial Court by order dated 27.04.2019.
14. The order dated 27.04.2019, was subjected to revision in Criminal Revision No. 42 of 2019, before the Sessions Judge, Balrampur, who dismissed the same by means of order impugned in the present application.
15. In the revision, the Sessions Judge, Balrampur has duly considered all the facts of the case as argued by the applicant including the fact that his bag was stolen which contained the cheque in question and subsequently presented by opposite party no. 2 to his banker and was ultimately dishonored. The revisional Court has also recorded the fact that the applicant has admitted his signatures on the cheque. The Court below has also considered the fact that the applicant is a retired teacher and is doing constructions work due to which between 2009-2013, he was paid by the opposite party no. 2. The applicant in order to discharge his debt had given a cheque of Rs.8,00,000/- to opposite party no. 2 which was duly presented by him to his banker and was subsequently dishonored.
16. The information regarding dishonour of cheque was duly given by opposite party no. 2 to the applicant in the form of legal notice, at his correct address, but the applicant did not responded to the same. It has also been considered by the Court below that the said cheque was dated 22.05.2015, while in his defense the applicant has stated that it was misplaced/stolen on 27.06.2014. The Court below in aforesaid circumstances did not believe the case of the applicant.
17. Considering the aforesaid circumstances, it is clear that prima-facie case under Section 138 of Negotiable Instruments Act is made out against the applicant and during trial the applicant shall have full opportunity to lead evidence in his defense, but on the application for discharge mini trial cannot be conducted and unless it is proved in evidence during trial, benefit of the facts as narrated by the applicant cannot be given to him.
18. The facts as stated by the applicant will have to be duly proved during trial and bald assertions cannot be accepted at the stage of discharge. No explanation was forthcoming from the applicant as to why he did not informed the bank when his cheque was lost.
19. Considering the aforesaid facts as well as arguments raised by learned counsel for the parties, I am of the considered opinion that there is no infirmity with the order of the revisional Court.
20. The application lacks merit and is accordingly dismissed.
Order Date :- 22.01.2021 A. Verma (Alok Mathur, J.)