Allahabad High Court
Gopal Singh vs State Of U.P. And Another on 11 November, 2022
Author: Subhash Chandra Sharma
Bench: Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 85 Case :- MATTERS UNDER ARTICLE 227 No. - 9603 of 2022 Petitioner :- Gopal Singh Respondent :- State of U.P. and Another Counsel for Petitioner :- Namit Srivastava,Kamal Kumar Counsel for Respondent :- G.A. Hon'ble Subhash Chandra Sharma,J.
Heard learned counsel for the petitioner, learned A.G.A. and perused material on record.
The present application has been filed by the applicant with a prayer to quash the impugned summoning order dated 29.1.2021 passed by learned Judicial Magistrate-I Ballia and order dated 13.9.2022 passed by learned Session Judge, Ballia in Criminal Revision No. 122 of 2022 (Gopal Singh Vs. State of U.P. and another) under Section 138 Negotiable Instruments Act, Police Station Maniar, District Ballia.
It is submitted that in this case, there was transaction between the petitioner and opposite party no. 2 relating to the transfer of share in the house regarding which a cheque no. 957026 bearing Account No. 3310239859 containing the amount of Rs. 45,000/- drawn in Purvanchal Bank Branch, Maniyar was handed over which was dishonoured by the bank concerned. As a result this complaint was filed against the petitioner though there arose a dispute relating to the aforesaid property regarding which cheque was handed over. It is further submitted that a suit was also filed regarding property in dispute which is still pending. In this way, there was no liability on the applicant to make payment of the amount as shown in the cheque, therefore, no prima facie case is made out against the petitioner under Section 138 N.I. Act and order passed by learned court concerned for summoning of the applicant cannot be said to be lawful even the order of revisional court by which it was dismissed is also not correct and the facts of the case were not considered, therefore, requested to quash the proceedings of the case along with summoning order.
Learned A.G.A. opposed the prayer for quashing the proceedings of the case.
Considering the facts and circumstances of the case and submissions made by learned counsel for the parties and perusal of record, it appears that cheque dated 1.10.2019 was signed by the applicant Gopal Singh containing the amount of Rs. 45000/- at Account No. 3310239853 which did not belong to the applicant which shows mala fide on the part of the applicant. There appears no any illegality in the order passed by learned Magistrate while summoning the petitioner and even revisional court has also passed the order after considering all the facts of the case and law relating to Section 138 and 142 of Negotiable Instruments Act. The petitioner has an option to move for discharge before the court concerned at appropriate stage with his submissions that will be considered on the basis of material on record. There appears no ground to quash the entire proceedings of this case with summoning order. Therefore, no any indulgence can be granted in favour of petitioner.
However, it is directed that in case, the petitioner surrenders and moves bail application before the court concerned within 30 days from today it will be decided expeditiously as far as possible according to law. In the meantime, the operation of N.B.W. order shall remained in abeyance.
Accordingly, the present application is disposed of finally.
Order Date :- 11.11.2022 A. Singh