Akash Kesharwani vs Smt. Mamta Sharma on 29 June, 2022

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Madhya Pradesh High Court

Akash Kesharwani vs Smt. Mamta Sharma on 29 June, 2022

Bench: Dinesh Kumar Paliwal

                                                                         1
                                                   IN THE HIGH COURT OF MADHYA PRADESH
                                                                AT JABALPUR
                                                                       BEFORE
                                                     HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                                                                 ON THE 29th OF JUNE, 2022

                                                      MISC. CRIMINAL CASE No. 33456 of 2019

                                               Between:-
                                               AKASH KESHARWANI S/O SHRI MANOJ
                                               KESHARWANI , AGED ABOUT 24 YEARS,
                                               OCCUPATION: LABOUR GANESHGANJ TAHSIL
                                               LAKHNADON (MADHYA PRADESH)

                                                                                                     .....PETITIONER
                                               (BY DR. ANUVAD SHRIVASTAVA, ADVOCATE )

                                               AND

                                     1.        SMT. MAMTA SHARMA W/O RAJKUMAR ,
                                               AGED   ABOUT   47  YEARS, OCCUPATION:
                                               ADVOCATE VILLAGE GANESHGANJ, TAHSIL
                                               LAKHNADON (MADHYA PRADESH)

                                     2.        STATION HOUSE OFFICER P.S LAKHNADON
                                               DISTT. SEONI (MADHYA PRADESH)

                                                                                                   .....RESPONDENTS
                                               (RESPONDENT No. 1 BY SHRI MANISH KUMAR JAIN, ADVOCATE)
                                               (RESPONDENT No.2/STATE BY SHRI SANDEEP DUBEY, PANEL
                                               LAWYER).

                                              This application coming on for admission this day, the court passed the

                                     following:
                                                                          ORDER

This petition under Section 482 Cr.P.C. has been filed by the petitioner for quashment of proceedings of Criminal Complaint No. 9/2019 (Smt. Mamta Sharma Vs. Akash Kesharwani) under Section 138 of Negotiable Instruments Act, pending before court of Judicial Magistrate First Class, Lakhnadon District Signature Not Verified SAN Seoni.

Digitally signed by AMITABH RANJAN Date: 2022.06.30 18:42:06 IST

Learned counsel for applicant has submitted that applicant was a 2 Collection Agent of Pincon Group. In that company, petitioner who is practicing Advocate had invested some amount. The company did not gave the promised benefit to the complainant/respondent No.1, so she moved an application before the Lakhnadon Police. Under the influence of police, petitioner signed the cheque dt. 30.10.2018 in favour of complainant/respondent No.1. When it was presented in the bank by the respondent No.1, cheque stood dishonered and after following due procedure, respondent No.1/complainant filed complaint under Section 138 of Negotiable Instrument Act against the applicant.

Placing reliance on the case law of M/s. Inden Power International Ltd., Secunderabad V/s Sri Chandan Pandya, 2015 Cri.L.J.(NOC) 392(HYD) learned counsel for the petitioner has submitted that the cheque was issued under pressure, it was not issued for any debt or liability. In such circumstances, the drawer of cheque cannot be prosecuted under Section 138 of N.I.Act. Therefore, it has been prayed that proceedings of Criminal Complaint No. 9/2019 under Section 138 of N.I. Act, pending before the Court of learned JMFC Lakhnadon, District Seoni bet set aside.

On the other hand learned counsel for respondent No.1/complainant has submitted that petitioner had liability to pay an amount of money to the respondent No.1 and when he could not pay the amount in cash, he issued a cheque of his account in faovur of respondent No.1 and when it was presented by the respondent No.1 for encashment, same was returned as dishonoured by the bank. Respondent No.1 gave notice under the Negotiable Instrument Act Signature Not Verified and when despite the notice the petitioner could not pay the cheque amount, she SAN Digitally signed by AMITABH RANJAN filed the complaint under Section 138 of N.I. Act and the same is pending Date: 2022.06.30 18:42:06 IST before the Court of learned JMFC, Lakhnadon.

The sole argument of learned counsel for petitioner is that cheque was not given for any liability or debt but was given under the pressure of Police Lakhnadon, therefore, complaint being not liable for prosecution is not maintainable. As far the argument of learned counsel for petitioner is concerned, that relates to the fact that cheque was issued under the pressure of Police. Whether cheque was issued under pressure or not, or was issued against some debt or liability is a jumbled question of fact which can be decided only after recording the evidence of the parties. Such jumbled question of facts cannot be decided in a petition under Section 482 of Cr.P.C..

Therefore, this petition being devoid of merits is dismissed. However, applicant/accused shall be at liberty to raise all his defence before the trial Court at the proper stage of trial.

(DINESH KUMAR PALIWAL) JUDGE Amitabh Signature Not Verified SAN Digitally signed by AMITABH RANJAN Date: 2022.06.30 18:42:06 IST

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