Rakesh Kumar Yadav vs State of U.P. and Another

Hon''ble Rajesh Dayal Khare, J.—Heard Sri Santosh Kumar Nigam, Learned Counsel for the opposite party no.2 and learned A.G.A. for the State respondent. On the request of Learned Counsel for the applicant matter was sent to Mediation Centre on 31.1.2011 and the Mediation Centre, vide its report dated 10.7.2011, has reported that the mediation has failed between the parties. The report of Mediation Centre is on record.

The present application has been filed for quashing the proceedings of case No. 293 of 2010 u/s 138 Negotiable Instrument Act, P.S. Kalyanpur District Kanpur Nagar pending in the court of A.C.M.M. II, Kanpur Nagar.

It is averred in the affidavit that no offence against the applicant is disclosed and the present prosecution has been instituted with malafide intention for the purposes of harassment.

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 applicant. All the averment made in the affidavit relates to the disputed questions of fact, which cannot be adjudicated upon by this Court u/s 482, Cr.P.C. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur Vs. The State of Punjab, , State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. 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 applicant has got a right of discharge u/s 239, 245(2) or 227/228, 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.

The prayer for quashing the proceeding is refused.

However, it is provided that if the applicant appears and surrenders before the court below within a period of 30 days from today and applies for bail, then his prayer for bail shall be considered in view of the settled law laid down by the Seven Judges'' decision of this Court in the case of Amaravati and another v. State of U.P., reported in 2004(57) ALR-290 and in the recent decision of the Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. and Others, , after hearing the Public Prosecutor. For a period of 30 days from today or till the disposal of the application for grant of bail, whichever is earlier, no coercive action shall be taken against the applicant. However, in case the applicant does not appear before the court below within the aforesaid period, coercive action shall be taken against him.

Learned counsel for the opposite party no.2 undertakes to inform the Learned Counsel for the applicant, in writing, within 24 hours, about the order passed today. With the aforesaid directions, this application is disposed off.