Allahabad High Court
Mohammad Sarfaraz Proprietor/ ... vs State Of U.P. Thru. Prin. Secy. Home ... on 2 May, 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. - 4336 of 2023 Applicant :- Mohammad Sarfaraz Proprietor/ Authorized Signatory M/S Ms Sagar Company And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Applicant :- Laxmi Narayan Gupta,Mohd. Usman Ghani Khan,Samreen Irfan Counsel for Opposite Party :- G.A. Hon'ble Suresh Kumar Gupta,J.
1. Heard learned counsel for the applicant, learned A.G.A. and perused the record. In view of order proposed to be passed, issuance of notice to opposite party no.2 is dispensed with.
2. The present application under Section 482 Cr.P.C. has been filed with the prayer to quash the entire proceedings of complaint case no. 79428 of 2021 (M/s. Shrawasthi Agrotech Private Limited Vs. Mohd. Sarfaraj and another) under Section 138 of the Negotiable Instrument Act relating to the Police Station- Hazratganj, District-Lucknow pending in the court of learned Additional Court No. 2, Lucknow as well as impugned summoning order dated 9.2.2022 and order of bailable warrant dated 6.5.2022 passed by the learned Prescribed Authority, Additional Court No. 2, Lucknow.
3. Learned counsel for applicant has submitted that the petitioners and opposite part no. 2-company were on business terms and for the business purpose, the opposite party no. 2-company had taken two undated security cheques vide cheque no. 161800 of amounting Rs. 1,79,265/- and cheque no. 161805 of amounting Rs. 1,20,000/- from the petitioner in the year, 2019. He further submitted that everything was going on very smoothly and the dispute arose between the petitioners and opposite party no. 2-company in the month of July, 2021,when the opposite party no. 2-company send bad quality poultry feed and the petitioners did not make payment of said bad quality poultry feed i.e. Rs. 1,99,265/- He further submitted that at the passing of the impugned orders the learned trial court did not consider the fact that as per averment in complaint only the amount of Rs. 1,99,265/- was due upon the petitioners but the opposite party no. 2-company had presented the cheques of Rs. 2,99,265/- i.e. Rs. 1,00,000/- was excess to the alleged due amount. This fact itself shows that the opposite party no. 2-company has misused those undated cheques, which were given by the petitioner as security in the year, 2019. The trial court also failed to consider this fact that both the parties are companies, as such the complaint case should be filed under Section 141 of the Negotiable Instrument Act, as such the complaint filed by the opposite party no.-2-company is not sustainable in the eyes of law.
4. Before arguing the case on merits, learned counsel for the petitioners while pressing the present petition submits that the trial court while summoning the petitioner 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 and, therefore, the trial court has materially erred in summoning the petitioner.
5. 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 petitioners. 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 petitioners have 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 he is free to take all the submissions in the said discharge application before the trial court.
6. So far as the summoning order passed by the learned trial court is 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 petitioner 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.
7. The prayer for quashing the impugned summoning order as well as impugned proceedings is refused.
8. However, considering the facts and circumstances of the case, 30 days' time from today is granted to the applicant to appear before the trial court and if he applies for bail, then 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.
9. For a period of 30 days from today, no coercive action shall be taken against the applicant.
10. Accordingly, the petition under Section 482 Cr.P.C. is disposed of.
Order Date :- 2.5.2023 Anuj Singh