Allahabad High Court
Omkar Lohiya vs State Of U.P. And Another on 21 April, 2023
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 68 Case :- APPLICATION U/S 482 No. - 6136 of 2023 Applicant :- Omkar Lohiya Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rakesh Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Mr. Rakesh Kumar Srivastava, learned counsel for the applicant, Mr. K.P. Pathak, learned AGA for the State and perused the records.
2. The present application under Section 482 Cr.P.C. has been filed to quash the summoning order dated 30.01.2020 as well as the entire proceedings of Complaint Case No.08 of 2020, (Netrapal Awana vs. Omkar Lohiya), under Section 138 of Negotiable Instruments Act, 1881, Police Station-Phase-II NOIDA, District-Gautam Buddh Nagar, pending in the Court of the Additional Court No.3, Gautam Buddha Nagar.
3. Brief facts of the case are that the opposite party no.2 filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') against the applicant stating therein that the applicant and opposite party no.2 are known to each other and on 10.06.2018, the applicant came to the house of opposite party no.2 and requested for Rs.10 lacs, which was needed by him. The aforesaid amount was given to him on 20.06.2018 by the opposite party no.2 with a condition that the same will be returned by the applicant within six months. Thereafter, in December, 2018, when the opposite party no.2 asked the applicant to return the money, the applicant had issued a cheque of Rs.10,00,000/- from Allahabad Bank, Branch-Bhangel, Phase-II NOIDA, Gautambuddha Nagar, bearing cheque no.035621 dated 16.07.2019 in favour of opposite party no.2. On receipt of the same, opposite party no.2 has presented the same before the concerned Bank for encashment on 16.07.2019, but the same was dishonoured due to "Drawer Signature Differ" on 17.07.2019. The aforesaid information was given to the applicant by the opposite party no.2, but the applicant refused to return the amount as taken by him from the opposite party no.2. Thereafter, opposite party no.2 sent a legal notice to the applicant on 26.07.2019 through registered post, which has been received by the applicant on 27.07.2019. After the notice neither any amount was paid nor reply was submitted by the applicant, therefore, the present compliant has been filed on 21.08.2019. Subsequently, the learned Magistrate after recording the statement under Sections 200 and 202 Cr.P.C. summoned the applicant vide order dated 30.01.2020, under Section 138 of the Act.
4. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case. He disputed the signature on the cheque and stated that no such cheque was given by the applicant to the opposite party no.2, hence the ingredients of complaint under Section 138 N.I. Act are missing and, therefore, the proceedings are clearly not maintainable under the Negotiable Instruments Act, 1881. He further submits that another cheque for the same amount, which has been placed at page 43 bearing different signature, has been placed before the bank and dishonoured, for which another complaint has also been lodged. Thus, the summoning order as well as the entire proceedings is liable to be quashed.
5. On the other hand, Mr. K.P. Pathak, learned AGA for the State, has submitted that the difference in signature of the applicant in the cheque very well make out the offence u/s 138 N.I. Act as the Apex Court in the case of Messrs. Laxmi Dyechem vs. State of Gujarat and others reported in (2012) 13 SCC 375 has held that any such technical reason or endorsement of Bank for dishonour of cheque does not affect/disqualifies the prosecution under section 138 N.I. Act and would constitute the offence u/s 138 N.I. Act. He further submits that the summoning order passed by the concerned Magistrate is legal and just in the eyes of the law and at this stage, only a prima facie case is to be seen and the complaint cannot be thrown at the threshold. He further submits that in case, cheque is disputed, the same can be seen at the time of trial. The cheque placed at page 43 pertains to different cheque number and different transaction, therefore, another complaint under Section 138 N.I. Act has been filed as permitted under the law. Therefore, the present application is liable to be dismissed.
6. I have carefully considered the submissions advanced by learned counsel for the parties and have also gone through the material available on record.
7. Before proceedings further, it is apposite to give reference of some judgments of the Apex Court as well as this Court, wherein the Apex Court has laid down the guideline for quashing of criminal proceedings arising out of Section 138 of N.I. Act, which are as follows:-
i) C.C. Alavi Haji Vs. Palapetty Muhammed and Another, reported in (2007) 6 SCC 555;
ii) Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah, reported in 2014 12 SCC 685;
iii) Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Pyarelal, reported in (1999) 3 SCC 35;
iv) Basalingappa Vs. Mudibasappa reported in (2019) 5 SCC 418;
v) Kishan Rao Vs. Shankargouda, (2018) 8 SCC 165;
vi) Ranjit vs. State of U.P. and another decided on 31.01.2020 passed in Application U/s 482 No. 47282 of 2019.
9. The law regarding the issue where drawer's signature was incomplete or differing signature has been dealt by the Apex Court in the case of Laxmi Dyechem Vs. State of Gujrat and others reported in (2012) 13 SCC 375, wherein it has been held that in case the cheque has been dishonoured on account of "drawer's signature differs", it shall also be a punishable offence and attract to the criminal proceedings under section 138 of the Negotiable Instrument Act.
10. In view of the settled legal position, as noticed above, it is clear that at this stage, only a prima facie case is to be seen and the complaint cannot be thrown at the threshold. The Court feels that the structural defect in the cheque issued by any drawer may have several reasons, which may either be bonafide, unintentional or be dishonest and malafide. It would be very unreasonable to say that the receiver of any cheque issued by any drawer should first ensure as to whether there is any structural defect in the cheque or not and further to ensure as to whether such structural defect is an out come of either of the aforesaid reasons. Such structural defects can in most cases come to the knowledge of receiver of the cheque, when the same is returned by the Bank as dishonoured with an endorsement mentioning reasons for its dishonour. The difference in signatures and incomplete signature is one of several categories of structural defects and the reason of such structural defect is a matter of trial and is required to be adjudged after appreciation of the evidence.
11. In the present matter, the applicant has taken plea of such structural defect just to get rid of his criminal liability by seeking quashment of impugned order in question without making any plea about the non-liability of amount to make payment or the plea of any debt or other liability of complainant to rebut the stand of complainant.
12. It is well settled that for the purpose of quashing of a complaint, the High Court cannot look into the defence of the accused. The Court is only required to see whether on the basis of the averments made in the complaint and the relevant particulars produced by the complainant, there are grounds for proceeding against the accused. Inherent power of quashing criminal proceedings U/s 482 Cr.P.C. should be exercised very sparingly and with great circumspection. It does not confer on the court to act arbitrarily as per its own whims and caprice. At this stage, the Courts could not have gone into the merits and reached a conclusion that there are no existing debt or liability and quash the complaint. Therefore, the basic law is that the complaint under Section 138 of Negotiable Instrument Act cannot be quashed by High Court by taking recourse to Section 482 Cr.P.C, if disputed questions of facts are involved which need to be adjudicated after respective evidence is led by the parties before the trial court
13. On the basis of discussions made herein above, this Court finds that there is no illegality or infirmity in the summoning order dated 30.01.2020 passed by the concerned court below. Therefore, the prayer for quashing the impugned summoning order as well as the entire proceedings of the aforesaid case are refused, as I do not see any abuse of the court's process at this pre-trial stage.
14. In view of the aforesaid, the application is, accordingly, dismissed.
Order Date :- 21.4.2023 Jitendra/-