Court No. - 75
Case :- APPLICATION U/S 482 No. - 44314 of 2019 Applicant :- Smt. Rashmi Gupta Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Pankaj Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Gupta,J.
Supplementary affidavit filed today in Court is taken on record.
Heard learned counsel for the applicant, learned A.G.A. and perused the record.
The present application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 6.6.2016 and NBW order dated 18.9.2019 as well as entire criminal proceedings of Complaint Case No. 1140 of 2015 (Vishnu Gupta Kantak Vs. Rashim Gupta), under Section 138 of N.I. Act, P.S. Delhi Gate, District- Aligarh, pending in the court of Addl. Chief Judicial Magistrate, Court No. 7, Aligarh.
As per the allegations made in the complaint, it is alleged that the applicant has issued a Cheque No. 505118 dated 26.2.2016 amounting to Rs. 4,00,000 to Opposite Party No.2, however, on presentation of the said cheque, the same was dishonoured by the bank and returned back. 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 u/s 138 of N.I. Act has been filed.
Learned Magistrate on the basis of allegation made in the complaint and after making the requisite enquiry under Sections 200 and 202 CrPC, has summoned the applicant to face trial under Section 138 of Negotiable Instrument Act vide order dated 6.6.2016, however pursuant to the said order, the applicant did not appear before the court below and as such non bailable warrant was issued against him, even then the applicant did not appear before the court below and as such proclamation under Section 82 Cr.P.C. has also been issued against him.
Learned counsel for the applicant has submitted that no due debt or liability exists, therefore, proceedings u/s 138 of N.I. Act cannot be drawn against the applicant.
Per contra; learned A.G.A. has submitted that learned Magistrate on the basis of allegation made in the complaint and after making the requisite enquiry under Sections 200 and 202 CrPC, has summoned the applicant to face trial under Section 138 of Negotiable Instrument Act vide order dated 6.6.2016, however despite issuance of repeated non bailable warrants, the applicant did not appear before the court below as such proclamation has rightly been issued against him. The disputed question of due debt or liability can not be considered at this stage when the evidence is yet to come, as such there is no illegality or infirmity in the impugned order.
Having considered the rival submissions made by the counsel for the parties and taking into consideration that learned Magistrate on the basis of allegation made in the complaint and after making the requisite enquiry under Sections 200 and 202 CrPC, has summoned the applicant to face trial vide order dated 6.6.2016, however despite issuance of repeated non bailable warrants the applicant did not appear before the court below, as such proclamation u/s 82 Cr.P.C. has rightly been issued against him and there is no illegality or infirmity in the said order. Moreover, the disputed question of due debt or liability cannot be considered at this stage when the evidence is yet to come. The impugned order is just, proper and legal and do not call for any interference at this stage.
The present application u/s 482 is devoid of merit and is accordingly dismissed.
Order Date :- 18.12.2019 KU