Allahabad High Court
Nitin Jain And Another vs State Of U.P. & Another on 3 February, 2010
Court No. - 49 Case :- APPLICATION U/S 482 No. - 34578 of 2009 Petitioner :- Nitin Jain And Another Respondent :- State Of U.P. & Another Petitioner Counsel :- Dharm Vir Singh Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the parties.
Present 482 Cr.P.C. petition has been filed for quashing the proceedings of complaint case no.2234 of 2008, under Section 138 Negotiable Instruments Act, pending before the Chief Judicial Magistrate, Etah. It is contended by the learned counsel for the applicants that a misplaced cheque of the applicants was misused by the opposite party no.2 and the present criminal proceeding under Section 138 Negotiable Instruments Act has been initiated against the applicant. It is further contended that no date of receipt of notice has been specified and, therefore, no proceedings under Section 138 Negotiable Instruments Act could have been drawn against the applicants. It is lastly contended that no amount was due to be paid by the applicants and, therefore, initiation of proceedings under the charged section is bad in law.
The contention of the learned counsel for the applicant is that no offence against the applicant is disclosed and the present prosecution has been instituted with malafide intentions for the purposes of harassment. He pointed out certain documents and statements in support of his contentions. 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 applicants. All the submission made at the bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr. P.C. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 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 applicants has got a right of discharge under Section 239 or 227/228 of 245 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 of complaint case no. 2234 of 2008, is refused.
However, considering the fact that the applicant no.2 is lady, it is provided that she appears and surrenders before the Court below within a period of 30 days from today and applis for bail, then her prayer for bail shall be considered and decided, expeditiously, if possible on the same day, in accordance with law, and for remaining applicant, it is provided that if he appears and surrenders before the Court below within a period of 30 days from today and applies for bail, then his prayer for bail shall be considered in view of the settled law laid down by this Court in the case of Amarawati and another Vs. State of U.P., reported in 2004(57) ALR-290, and a recent decision of the Supreme Court dated 23.3.09 in Criminal Appeal No. 538 of 2009, Lal Kamlendra Pratap Singh v. State of U.P. and another reported in 2004(57) ALR-290. after hearing the public prosecutor. For a period of 30 days from today or till the disposal of the application for grant of bail, whichever is earlier, coercive action shall not be taken against the applicants. However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them. With the aforesaid directions, this application is disposed of. Order Date :- 3.2.2010 Hasnain