Court No. - 64
Case :- APPLICATION U/S 482 No. - 21690 of 2019 Applicant :- Smt Shefalika Mishra Lodha Opposite Party :- State Of Up And Another Counsel for Applicant :- Bhavya Sahai Counsel for Opposite Party :- G.A.
Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the applicant and learned AGA for the State.
This application has been filed by the applicant with a prayer to quash the entire proceeding of complaint case no.1747 of 2016, under Section 138 of the N.I. Act, 1881, P.S. Sector- 20 NOIDA, Gautam Budh Nagar, pending in the court of Additional court, court no.3, Gautam Budh Nagar.
Learned counsel for the applicant has vehemently argued that in this case the proceedings launched against the applicant under Section 138 of N.I. Act is in sheer misuse of the process of the Court for the reason that applicant never issued any such cheque and the cheque in question does not bear any such signature of the applicant and in the absence of signature of the applicant, how can proceeding under Section 138 N.I. Act be initiated. In similar matter Hon'ble The Apex Court in the case of Aparnaa Shah versus Sheth Developers Private Limited and another, (2013) 8 Supreme Court Cases 71 has quashed the entire proceeding.
Learned AGA has submitted that this is merely a summoning stage and whatever factual claim is raised that is the domain of the court of first instance itself. Since nothing has happened except summoning order has been issued against the applicant. In so far as the point of direction of the aforesaid order of the Hon'ble Apex Court is concerned, then in that case proceedings got fructified in its final count and thereafter adjudication was made by the Hon'ble Apex Court, which is not the case in the present case because this case is confined at present upto issuance of the summoning order.
Considered the rival submissions and perused the record, admittedly it is the summoning stage and at this stage, whatever the factual aspect in the form of contention is raised need be brought before the lower court itself because the lower court is the competent court first to scrutinize the factual aspect and in exercise of power under Section 482 Cr.P.C, straight-way adjudication conclusively cannot be given on fact without proper scrutiny; that being the present position it cannot be said that the claim raised is the conclusive stage or has attained finality this juncture. Consequently, no interference is required, however, the claim raised before this court may be brought to the notice of the lower court and the lower court is duty bound to ascertain whether the signature of the applicant is very much existing on the dishonoured cheque or not and then only to continue with the proceeding against the applicant.
Accordingly, this application is disposed off.
However, observation so made shall not touch the merit of the case.
Order Date :- 30.5.2019 Raj