Allahabad High Court
Maksud Ashraf Khan vs State Of U.P. Thru. Addl. Chief Secy. ... on 21 April, 2023
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 13 Case :- APPLICATION U/S 482 No. - 3871 of 2023 Applicant :- Maksud Ashraf Khan Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Lko. And 3 Others Counsel for Applicant :- Ripu Daman Shahi,Ravi Prakash Singh Counsel for Opposite Party :- G.A. Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for applicant, learned A.G.A. for the State and perused the material available on record.
By means of this application under Section 482 Cr.P.C., the applicant has sought following prayer:-
"Wherefore, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to set aside summoning order dated 27.7.2022 passed by learned Judicial Magistrate/Civil Judge (Junior Division), Shravasti in Complaint Case No. 17678 of 2021, under Section 138 of the Negotiable Instruments Act, as well as judgment and order dated 3.4.2023 passed by learned Additional Sessions Judge/Fast Track Court (14th Commission), District Shravasti in Criminal Revision No. 67 of 2022 may also be quashed."
Learned counsel for applicant has submitted that the applicant is innocent and has falsely been implicated in this case. Further submission is that there are several dispute between the applicant and opposite party no. 2. It is further submitted that on the cheque in question the date is mentioned as 01.11.2021 from Allahabad Bank but at that time, the cheque in question was no longer be acceptable. The cheque in question was related to the account of the applicant in Allahabad Bank, which was merged with Indian Bank on 01.04.2020 and the cheque in question was illegally retained by the complainant since 7.4.2018. The cheque in question belongs to the same series which was completed exhausted and drawn between 01.03.2018 to 01.07.2018. The question in question was mischievously retained by opposite party no. 3 to misuse the same that too when the Allahabad Bank already stood merged with the Indian Bank prior to allege date of issuance of cheque i.e. 01.11.2021.
It is further submitted that the complainant presented the cheque in question of Allahabad Bank in the name of Allahabad Bank changed to Indian Bank as a result of merger of the two banks and all the instruments issued in the name of Allahabad Bank were declared invalid as is evidence from the communication issued by the Indian Bank through SMS to his customers as well as through its official Twitter Handle, which reads as under:-
"Erstwhile Allahabad Bank customers can continue to enjoy a seamless banking experience with Indian Bank by ordering new cheque books as the old ones will no longer be acceptable w.e.f. 01.10.2021"
The Indian Bank accepted the cheque in question and endorsed that no sufficient amount. Due to this reason the present complaint Case under Section 138 of the Negotiable Instruments Act, 1881 on the basis of dishonor of cheque has been registered against the applicant.
It is further submitted that the cheque in question was handed over to the complainant to deposit the Good and Services Tax relating to Brick Kiln of the applicant. It is relevant to mention here that brother of complainant was doing business with the applicant. When the relations between them become sour, dispute arose between the parties. Thereafter complainant filed an application under Section 156 (3) Cr.P.C. on 27.11.2020 and the same was rejected by means of order dated 7.12.2020 by learned Chief Judicial Magistrate. Thereafter the complainant lodged an FIR No. 0053 dated 13.04.2021 against the applicant and his family members. In the said FIR, the police submitted final report against the applicant.
Learned counsel for applicant has submitted that in this background it is impossible that the applicant will ever issue any cheque in favour of the complainant that too on 1.11.2021 when the parties are already engaged in bad blood and series of litigation. Therefore, there is no recoverable debt due against the applicant. It is nothing but abuse of process of the Court.
Learned A.G.A. for the State has submitted that dispute question of fact is involved in the said, which cannot be decided at this juncture.
Learned A.G.A. for the State has opposed this application under Section 482 Cr.P.C. by submitting that on the basis of statements of the complainant and witnesses, the applicant has been rightly summoned.
Before arguing the case on merits, learned counsel for the applicant while pressing the present application under Section 482 Cr.P.C. submits that the trial court while summoning the applicant has materially erred and did not follow the dictum of law as propounded by the Hon'ble Supreme Court in various cases that summoning in criminal case is a serious matter and the trial court without dwelling into material and visualizing the case on the touch stone of probability should not summon accused person to face criminal trial. It is further submitted that the trial court has not taken into consideration the material placed before the trial court, therefore, the trial court has materially erred in summoning the applicant.
So far as quashing of entire proceedings is concerned, from the perusal of the material on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against the applicant. All the submission made relates to the disputed question of fact, which cannot be adjudicated upon by this Court. At this stage, only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge according to the provisions prescribed in Cr.P.C., as the case may be, through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the trial court.
The prayer for quashing the proceedings is refused.
So far as regard the cognizance and summoning order passed by the learned trial court concerned, at the stage of taking cognizance, trial court can simply form an opinion as to whether the case is fit for taking and committing the matter for trial or not. In the present case, learned trial court clearly expressed his opinion that he perused all the record and clearly indicated that the material placed before him is sufficient to proceed the case. Thus, the cognizance order is not a proforma order. Every aspect is touched by learned trial court and applicant failed to adduce any evidence which caused prejudiced to him. So, the cognizance and summoning order is perfectly valid and there is no occasion to quash the same.
However, it is provided to the applicant to appear before the trial court and if he applies for bail, then his bail application shall be considered and decided in accordance with law propounded by the Apex Court in Satender Kumar Antil Vs. Central Bureau of Investigation and another (Special Leave to Appeal (Crl.) No.5191 of 2021, decided on 07.10.2021. In this case Hon'ble the Apex Court has already laid down guidelines for grant of bail, without fettering the discretion of the courts concerned and the statutory provisions governing consideration in grant of bail, no specific directions need be issued by this Court as it is expected that the court concerned will take into consideration the necessary guidelines already issued by the Apex Court.
Till the period of one month, no coercive measure shall be taken against the applicant.
Accordingly, the application under Section 482 Cr.P.C. is disposed of.
Order Date :- 21.4.2023 Virendra