Court No. - 75
Case :- APPLICATION U/S 482 No. - 45082 of 2019 Applicant :- Vyas Muni Upadhayay Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Sudhanshu Pandey,Mayank Mohan Dutt Mishra Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
This application under Section 482 CrPC has been filed by the applicant for quashing the impugned summoning order dated 25.07.2019 as well as entire criminal proceedings of Complaint Case No. 1358 of 2019, (Vijay Kumar Pandey Vs. Vyasmuni Upadhayay), under Section 138 of Negotiable Instruments Act, Police Station Kotwali, District Maharajganj, pending in the Court of learned C.J.M., Maharajganj.
As per the allegations made in the complaint, it is alleged that the applicant had issued a cheque bearing no. 13682 dated 26.12.2018 in favour of the Opposite Party No.2 for an amount of Rs.4,00,000/-. On presentation of the said cheque before the Bank, it was dishonoured and returned back.
After dishonour of the cheque, a legal notice was sent to the applicant to make good the payment of the cheque amount, however, despite being noticed, the applicant has not made good the payment of the cheque amount, as such, a complaint under Section 138 of Negotiable Instruments Act has been filed by the Opposite Party No.2 against the applicant.
On the basis of the said complaint, learned Magistrate, after considering the allegations made in the complaint and making requisite enquiry under Sections 200 CrPC and 202 CrPC, has summoned the applicant to face trial under Section 138 of the Negotiable Instruments Act vide order dated 25.07.2019.
Learned counsel for the applicant has submitted that the date of service has not been mentioned in the complaint and no due debt or liability exists and the complaint itself is premature, as such, proceedings under Section 138 of the Negotiable Instruments Act can not be initiated against the applicant.
Per contra, learned AGA for the State has supported the impugned summoning order and has submitted that the disputed questions regarding date of service, existence of due debt and liability cannot be determined at this stage, when the evidence is yet to come. The question, if the complaint is pre-mature, can also well be considered by the court below.
Learned AGA has further submitted that the learned Magistrate, after considering the allegations made in the complaint and after making requisite enquiry, has summoned the applicant to face trial and there is absolutely no illegality or infirmity in the impugned summoning order and the application is liable to be dismissed.
Having considered the rival submissions made by learned counsel for the parties and considering the reasons assigned in the impugned summoning order and keeping in view the fact that disputed questions of date of service and the existence of due debt or liability can not be determined at this stage, when the evidence is yet to come. The question of filing of pre- mature complaint can also well be considered by the court below at appropriate stage.
Moreover, applicant was summoned vide order dated 25.07.2019 but he did not appear before the court below, as such, NBW has also rightly been issued against him. I do not find any illegality or infirmity in the impugned order passed by the court below, which does require any interference by this Court at this stage.
Present application under Section 482 CrPC is devoid of merit and it is accordingly dismissed.
Order Date :- 17.12.2019 Nadim