Allahabad High Court
Manish Kumar @ Manish Yadav vs State Of U.P. And Anr on 6 July, 2018
Equivalent citations: AIRONLINE 2018 ALL 2671
Author: Vijay Lakshmi
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- APPLICATION U/S 482 No. - 14494 of 2018 Applicant :- Manish Kumar @ Manish Yadav Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Ashutosh Yadav,Abhilasha Singh,Shyam Lal Counsel for Opposite Party :- G.A. Hon'ble Mrs. Vijay Lakshmi,J.
Heard learned counsel for the applicant and learned A.G.A. for the State. Perused the records.
The applicant, by means of this application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with prayer to quash the entire proceedings of Complaint Case No.1328 of 2016, Amarpal Yadav Vs. Manish Yadav, under Section 138 of N.I. Act, P.S. Sector 49, Noida, District-Gautam Buddh Nagar, pending in Court of learned Judicial Magistrate, Gautam Buddh Nagar.
Learned counsel for the applicant has contended that the applicant had not given any cheque to the complainant/O.P. No.2 and the version presented by the complainant/O.P. No.2 in his complaint is absolutely false. It is further contended that no business transaction between them regarding sale and purchase of any property had ever taken place. In fact, on 17.7.2015 the applicant had lost his two cheque books of State Bank of India and of ICICI Bank while he was going to his village. On the same date he had intimated both the banks orally about loss of his cheque books and pass books. It is also argued that the complainant deliberately sent the notice on the village address of the applicant instead of his present address as the applicant presently resides at Sector 49 Gautambudh Nagar. Much stress has been laid on the point that the notice sent by the complainant was never served on him as there is no mention either in the complaint or in the statements recorded under Sections 200 and 202 Cr.P.C. about the date of service of notice on the applicant. The contention of learned counsel for the applicant is that there is no evidence that notice has been sent through postal service. On the aforesaid grounds it has been contended that the entire proceedings of the aforesaid complaint case are liable to be quashed.
Reliance has been placed on two single bench judgments of this Court rendered in Deepak Kumar & AM. Vs. State of Uttar Pradesh & Anr, 2007 (2) Civil Court Cases 467 (ALL) on application under Section 482 Cr.P.C. and Kanhaiya Lal & Anr vs. State of U.P. & Anr, in Criminal Revision No.563 of 2008.
Per contra, learned A.G.A. has vehemently opposed the application.
Considered the rival contentions of the learned counsel for the parties.
In so far as the argument regarding service of notice is concerned, in the complaint and in the statement under Section 200 Cr.P.C. the complainant has categorically stated that he sent the notice to the applicant on 23.5.2016 through his lawyer.
The Hon'ble Apex Court in M/s. Sil Import, Usa Vs. M/s. Exim Aides Silk Exporters, AIR 1999 SC 1609, has observed as under:
"When the legislature contemplated that notice in writing should be given to the drawer of the cheque, the legislature must be presumed to have been aware of the modern devices and equipment already in vogue and also in store for future. If the court were to interpret the words giving notice in writing in the section as restricted to the customary mode of sending notice through postal service or even by personal delivery, the interpretative process would fail to cope up with the change of time. ..........On analysis of the provisions of law, we find that there may be other mode of service also, such a service by courier or service by Fax message or service by Electronic mail or service by litigant directly etc. There is nothing either in the provisions of the Code or the rules by which it can be said that other modes of service are excluded or prohibited."
A Three Judges' Bench of Hon'ble Supreme Court in C.C. Alavi Haji Vs. Palapetty Muhammed and Another, (2007) 6 SCC 555, has held as under:
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation.
As observed in Bhaskaran case, if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
In view of the above cited legal position, it cannot be said that notice was not served on the applicant.
Whether any business transaction actually took place between the parties or whether the applicant lost his cheque books and gave oral information about it to the banks or not and what was the date of service of notice on the applicant, all these questions involve disputed questions of fact which can be decided only after recording of evidence before the trial court and not at this initial stage of summoning, in the proceedings under Section 482 Cr.P.C.
On a perusal of various annexures appended to the application including the copy of the complaint, statements of complainant and the witness under Sections 200 and 202 Cr.P.C., copy of the notice and the impugned order, prima facie it appears that offence under Section 138 N.I. Act is made out against the applicant. By the impugned order, the applicant has been summoned only and it is open for him to adduce evidence and to prove his innocence during course of trial.
The law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required.
In the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736, the Hon'ble Apex Court had held as follows:
"The magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused."
The submissions made by the learned counsel for the applicant calls for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins.
In view of the above, the prayer for quashing the entire proceedings of the aforesaid complaint case is refused.
The application lacks merit and is liable to be dismissed. It is accordingly dismissed.
06.7.2018-SB.