Krishna Gopal Singh vs State of U.P. and Another

Naheed Ara Moonis, J.—The instant application u/s 482, Cr.P.C. has been filed by the applicant with a prayer to quash the order dated 24.1.2008 and 28.2.2008 passed by the Civil Judge (Junior, Division) Nagina District Bijnore in Complaint Case No. 822 of 2007, Satendra Kumar v. Krishna Gopal, whereby the applicant has been summoned to face trial u/s 138, Negotiable Instruments Act. The prosecution case in a short conspectus is that the opposite party No. 2 filed a complaint on 3.11.2007 against the applicant with the allegation that two cheques being Nos. TEL 785006 and TEL 785007 dated 15.6.2007 and 30.6.2007 for Rs. 50,000 each of Punjab National Bank Branch Bajar Kalan District Bijnore were handed over to the complainant by the applicant. The applicant had assured that the complainant will get the payment of said amount by depositing the cheques at Punjab National Bank. The aforesaid both cheques were deposited on 10.7.2007 The said cheques were dishonoured with a remark that the fund was not sufficient. The complainant went to the applicant and apprised him about the dishonour of both cheques. The applicant again assured to the complainant that on account of unavoidable circumstances, the amount could not be deposited. He may get both cheques encashed in the month of September, 2007. The complainant again deposited both the cheques on 26.9.2007 in U.P. Gramin Bank Branch Dhampur District Bijnore. Both the cheques were further returned with the remark that the fund was insufficient. The complainant thereafter gave a legal notice on 5.10.2007 through Advocate Naresh Singh Chauhan which was received by the applicant but the applicant neither gave any reply to the notice nor made the payment. In these circumstances, the opposite party No. 2 filed complaint before the court of Additional Munsif Magistrate Nagina District Bijnore. The statement of the complainant u/s 200, Cr.P.C. was recorded wherein the complainant reiterated the averments made in the complaint and in support of the complainant, the statement of Ram Prakash Sisodiya and Sher Singh u/s 202, Cr.P.C. were recorded as P.W. 2 and 3. Considering the contents of the complaint and perusing the statement of the witnesses, the court below prima facie found that offence u/s 138, N.I. Act was made out against the applicant thus the Judicial Magistrate/Addl. Civil Judge (Jr. Division) Nagina passed the order dated 11.12.2007 summoning the applicant to face trial u/s 138, N.I. Act.

Feeling aggrieved by the aforesaid order, the applicant filed application u/s 482, Cr.P.C. which came up before another Bench of this Court. The Hon''ble single Judge was pleased to pass the order dated 18.3.2008 staying the further proceedings of the aforesaid while issuing notices to the opposite party No. 2.

It is contended by learned counsel for the applicant that the applicant is a partner of firm known as Sisodiya Ansari Udhyog. The said firm is engaged in purchasing the sugar from the farmers. There are four partners of the said firm viz. Krishna Gopal Singh (applicant), Smt. Santosh Kumari w/o Ram Gopal. Smt. Meena w/o Mahesh Singh and Uprendra Singh Sisodia son of Krishna Gopal Singh. The applicant and Santosh Kumari, one of the partner of the firm were authorised to issue cheques. On the fateful day, i.e., on 14.4.2007, the cheques bearing No. 985007 and 985006 were lost. The applicant immediately communicated to the Punjab National Bank about the missing of said cheques and request-was also made not to make any payment of the aforesaid cheques to any person. The said information was given to the Punjab National Bank on 18/19.4.2007. It was also averred that no transaction had taken place between the applicant and the complainant. It appears that the applicant had secured the aforesaid cheques by using fair and foul means and had misused the same by making endorsement and got the same dishonoured by the bank. False story was set up that the applicant had issued the cheques in favour of the complainant. There is no whisper in the complaint for what purpose the cheques were issued to the complainant and the payment was to be made. The basic ingredients portraying the purpose for issuance of cheques were not mentioned in the complaint. The date of service of notice was not mentioned in the complaint. The complainant had misused the lost cheques for which due information was given to the Bank. The entire prosecution story is attended with mala fide therefore, it does not sustain in the eye of law and may be vitiated in the interest of justice.

Per contra Sri K.K. Pandey, learned counsel appearing on behalf of the complainant submitted that the applicant had set up a false defence with respect to missing of said cheques. In fact, the complainant had no knowledge about the loss of any cheque. A sum of Rs. 1.00 lac was due upon the applicant who had taken money for running business. The applicant had issued two cheques bearing No. 985006 and 985007 of Punjab National Bank dated 15.6.2007 and 30.5.2007. When the due amount was not paid, the aforesaid cheques were returned to the applicant. It is intrinsically wrong to say that there was no transaction between the applicant and the opposite party No. 2. The complainant had deposited the cheques twice in the bank but on account of insufficient fund, the said cheques were not encashed. The complainant had also sent legal notice which was duly served upon the applicant but the applicant failed to give any reply nor any amount was paid by the applicant within 15 days of the said notice. On the expiration of one month, the complainant was constrained to file complaint on 3.11.2007. The learned Magistrate after examining the statement of the complainant u/s 200, Cr.P.C. and the witnesses u/s 202, Cr.P.C. took cognizance of the matter finding prima facie case against the applicant. There is no procedural illegality or irregularity in taking the cognizance and initiating the proceedings against the applicant. The complainant has suffered fiscal and physical loss on account of unscrupulous attitude of the applicant therefore, the application invoking inherent jurisdiction u/s 482, Cr.P.C. being an abuse of process of court may be dismissed summarily. Having considered rival submission advanced by the learned counsel for the parties, this Court is of the opinion that on the basis of materials available on record, cognizance was taken by the court below against the applicant. At the very threshold this Court cannot interfere with the cognizance taken by the court below. In a proceeding u/s 138. N.I. Act if the cheque is returned by the bank unpaid for any reason as mentioned in Section 138 giving rise to cause of action. The burden is upon the accused applicant that no such cheque was issued which can only be rebutted after leading evidence. Therefore, the parties are at liberty to lead evidence before the court concern on the basis of which definite conclusion would be drawn with regard to the veracity and truthfulness of the complaint with respect to the cheque in dispute. The trial court will examine the allegations and counter allegations made against each other. This Court does not find any error in the orders passed by the court below. The application is bereft of any merit and is accordingly dismissed. The interim order passed by this Court is hereby vacated. Office is directed to communicate this order to the court concern. The trial court will make earnest endeavour to conclude the trial expeditiously if possible within six months.