Heard Mr. Deepak Kumar Jaiswal, learned counsel for applicants and learned A.G.A. for State.
Perused the record.
This application under section 482 Cr.P.C. has been filed challenging summoning order dated 16.7.2019, passed by Additional Chief Judicial Magistrate Court No. II, Varanasi in Complaint Case No.1862 of 2019 (Bank of India Vs. Shiksha Educational Trust and others) under section 138 N.I. Act, Police Station Kotwali, Varanasi, order dated 5.2.2021 whereby Non bailable warrants have been issued against applicant as well as entire proceedings of above mentioned complaint case now pending in the Court of Additional Chief Judicial Magistrate II, Varanasi.
Mr. Deepak Kumar Jaiswal, leaned counsel for applicant contends that impugned summoning order dated 16.7.2019 passed by court below is cryptic. It is then contended that complaint filed by opposite party-2 giving rise to above mentioned complaint case does not categorically state the date on which the alleged notice sent by complainant was served upon applicants. It is also contended that notice is vague, as it does not contain categorical recital with regard to liability to be discharged by applicant under the disputed cheque. It is lastly submitted that complainant by means of notice so issued could not claim entire amount payable by applicant under the contract but he could only claim the amount payable under the disputed cheque. On the aforesaid premise, it is urged that present criminal proceedings are liable to be quashed by this Court.
Per contra, learned A.G.A. opposed this application. Learned A.G.A. contends that applicants have been summoned by Court below in above mentioned complaint case by means of summoning order dated 16.7.2019. However, inspite of the fact that a period of more than two years has rolled by from the date of passing of passing of summoning order dated 16.7.2019, applicants have not yet appeared before Court below. As such, applicants have not honoured the summons issued by Court below. Consequently, non bailable warrants have been issued against applicants vide order dated 5.2.2021. It is thus urged that proceedings of above mentioned case have remained held up for more than two years on account of non cooperation of applicants.
Learned A.G.A. next contends that submissions urged by learned counsel for applicants in support of present application relate to disputed defence of applicants. Whether the notice was served upon applicant or whether notice is defective, all such facts can be dealt with by trial court at the time of trial. Neither a ground relating to the jurisdiction of Court nor a legal impeadiment regarding same has been urged. Reference has also been made to judgement of Apex Court in State of Gujarat Vs. Afroz Mohammed Hasanfatta, A.I.R. 2019 Supreme Court 2499 wherein following has been observed in paragraph 37. For ready reference same is reproduced herein under:
"37. For issuance of process against the accused, it has to be seen only whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defences. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. [Vide Nupur Talwar v. Central Bureau of Investigation and another(2012) 11 SCC 465]"
Consequently, learned A.G.A. submits that applicants are not entitled to any indulgence by this Court.
When confronted with above, learned counsel for applicants could not over come the same.
In view of above, application fails and is liable to be dismissed.
It is accordingly dismissed.
Order Date :- 19.8.2021 Arshad