Court No. - 15
Case :- APPLICATION U/S 482 No. - 3396 of 2016 Applicant :- Smt. Sudha Devi And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Tripathi Bhool Gaya Bhai Counsel for Opposite Party :- G.A.,Murli Dhar Mishra
Hon'ble Umesh Chandra Srivastava,J.
Heard Tripathi B.G. Bhai, learned counsel for the applicants, learned A.G.A. for the State, Shri Murli Dhar Mishra, learned counsel for opposite party no. 2 and perused the record.
Applicant has filed this application under section 482 Cr.PC with prayer seeking quashing of proceedings of Complaint Case No. 354 of 2013 (Ankit Chhabariya vs. Om Prakash and others), under section 138 N.I. Act, P.S. Uska Bazar, District Siddharth Nagar, pending in the court of Judicial Magistrate, Siddharth Nagar.
Learned counsel for the applicant has submitted that order passed by the learned Magistrate issuing process against applicant under section 204 Cr.P.C. is bad in law as it has failed to consider that cheque was not issued against any legally enforceable debt or liability. The stand of opposite party no. 2 in this regard is not clear, he has taken two stands, on one hand saying it was issued against the loan given to applicant by opposite party no. 2, on the other hand he has stated that it was issued in respect of material supplied to her.
The learned counsel for the applicant has further submitted that even if the facts averred in complaint believed to be true in there entirety, no offence under section 138 N.I. Act is made out against the applicant as alleged business transaction was between opposite party no. 2 and Om Prakash, it was not in between the applicant and opposite party no. 2.
Learned counsel for the applicant has further submitted that presumption under section 139 N.I. Act is rebutable, and once applicant taken a plea that cheque has not been issued in respect of a legally enforceable debt or liability, the burden lies on complainant to prove it otherwise. The opposite party no. 2 has no where disclosed in complaint that in what regard the applicant had issued cheque to him.
Learned counsel for the applicant has further submitted that two cheque return memos have been filed, one is dated 09.01.2013 and the second is dated 05.01.2013 about which the opposite party no. 2 has not made clear in the complaint how two cheque return memos are in existence and in respect of which the applicant is being prosecuted.
Per contra, learned counsel for opposite party no. 2 has submitted that when applicant has not denied the issuing of cheque, unless otherwise proceed, there would be a presumption under section 139 N.I. Act that it is in respect of a legally enforceable debt or liability and the presumption would not stand rebutted merely by denying the liability, drawer has to prove by cogent evidence that it is not issued in respect of any legally enforceable debt or liability but for any other purpose. He has further submitted that disputed questions of fact cannot be looked into in proceeding under section 482 Cr.P.C., they can be seen during trial only.
Having heard the respective submissions of learned counsel of both sides and considering the facts and circumstances of the case, I find that once the issuance of cheque is not denied by the applicant, presumption would be drawn against applicant that cheque has been issued in respect of a legally enforceable debt or other liability, unless other wise proved. The disputed questions of fact cannot be looked into in proceeding under section 482 Cr.P.C., they can be seen during trial only. The magistrate has therefore committed no illegality in taking cognizance and process against the applicant so that the same may be quashed.
In the result, application has no force and is dismissed as such.
Order Date :- 30.5.2018 Bhanu