Rajesh Kumar v. Smt. Geeta Kanaujiya), under Section
Legal Reasoning
HIGH COURT OF JUDICATURE AT ALLAHABAD ***** (Sl No.47) Court No. - 79 Case :- APPLICATION U/S 482 No. - 13211 of 2024 Applicant :- Smt Geeta Kanaujiya Opposite Party :- State of U.P. and Another Counsel for Applicant :- Satyam Singh,Swapnesh Singh,Sr. Advocate Counsel for Opposite Party :- G.A.,Ved Prakash Tripathi Hon'ble Anish Kumar Gupta,J. 1. Supplementary affidavit filed today in Court by learned counsel for the applicants is taken on record.
Legal Reasoning
2. Heard Sri Shiv Nath Singh, learned Senior Advocate assisted by Sri Swapnesh Singh, learned counsel for the applicant, Sri Ved Prakash Tripathi, learned counsel for the opposite party no.2 and Sri Rajiv Kumar Singh, learned A.G.A. for the State. 3. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the impugned order dated 15.03.2024 in Complaint Case No. 745 of 2018 (Rajesh Kumar vs. Smt. Geeta Kanaujiya), under Section 138 of the Negotiable Instruments Act, 1881 (in short, 'the N.I. Act'), P.S.- Rasoolabad, District- Kanpur Dehat, pending in the court of learned Judicial Magistrate, Court No. 1, Kanpur Dehat. 4. Learned Senior Counsel for the applicant submits that in the instant case, the cheques in question though were issued by the applicant but were not issued in favour of the opposite party no.2 rather in favour of some other person. Therefore, the applicant does not have any liability towards the opposite party no.2 whatsoever. Learned Senior Counsel for the applicant further submits that after the dishonor of the cheques in question, which were mis-utilized by the opposite party no.3, a legal demand notice was issued by the opposite party no.2, wrongly referring the cheque numbers and instead of cheque nos. 417545 and 417549, in the notice as well as in the complaint he has referred the cheque numbers as 467545 and 467549. Therefore, learned counsel for the applicant submits that the legal demand notice itself was a defective notice on the basis of which no complaint could have been filed under Section138 of the N.I. Act. 5. It is further contended by learned Senior Counsel for the applicant that the said cheque was issued in connection of a business which is run her husband, Sri Kamlesh Pratap Kanaujiya, who was the proprietor of the M/S Himanshu Cloth House. Even in that connection, whom the cheque was issued, there was no liability on the part of the applicant herein to that said person as well. It is further contended that the said cheques were issued as security cheques by the husband of the applicant in connection of his business and the same has been mis-utilized by the opposite party no.2 and the present complaint has been filed, which is not maintainable. Therefore, he has prayed for quashing of the entire proceedings of the complaint case. 6. Per contra, learned counsel for the opposite party no.2 submits that the opposite party no.2 has advanced the loan to the applicant herein and for the payment of the same the cheques were issued by the applicant herein. Learned counsel for the opposite party no.2 further submits the cheque numbers as have been referred in the notice as well as in the complaint initially were mentioned due to the misreading of the font of the cheque numbers in the disputed cheques, as the fonts were not clear enough and subsequently the said cheques numbers were corrected in the complaint before taking cognizance and the trial court has considered the entire material before summoning the accused persons herein and the summoning order categorically mentions the correct cheque numbers. Therefore, there is no illegality in the summoning of the applicant herein. The cheque was issued by the applicant herein from the joint account alongwith her husband and cheques were signed by the applicant herein, therefore, the applicant has been rightly made an accused in the instant case and rightly has been summoned by the trial court. It is further submitted that once it is admitted that the cheque was issued by the applicant whether it was in discharge of her liability or not that is the question which could be decided in the trial, however, for constituting an offence in view of the presumption under Section 139 of the N.I. Act, it shall be presumed that the said cheques were issued prima facie for the discharge of its liability by the drawer of the cheque. 7. In view thereof, a prima facie case has already been established before the trial court and thereupon the summoning order was passed by the learned trial court after considering the entire material. In the subsequent application for discharge moved by the applicant herein, in reply thereto the opposite party no.2 has categorically stated that the correct cheque numbers, at the most, it can be treated as a typographical error in the notice as well as in the complaint, which has been subsequently corrected and the trial court has taken note of the correct cheque numbers while issuing the summoning order to the applicant. Therefore, no interference is called for. It is further contended that since the trial is pending since, 2018 and it is not progressing due to non-cooperation of the applicant herein, this Court may issue an appropriate direction in this regard so that case can be concluded in a time bound manner. 8. Learned A.G.A for State supports the contentions raised by learned counsel for the opposite party no.2 and submits that there is no illegality in the summoning order as the same has been issued by the trial court after verifying the record of the case. 9. In view thereof, having heard the rival submissions made by learned counsels for the parties, this Court has carefully gone through the record of the case. From the record of the case, it is clear that cheques were issued by the applicant herein, which is not even disputed by the applicant, however, it is contended that it was issued for some other person as security cheques. Once it is admitted that the cheque was issued by the applicant, in view of Section 139 of the N.I. Act, it shall be presumed that the said cheques were issued by the drawer of the cheque in discharge of its liability or debt towards the holder of that cheque. Therefore, a prima facie case has been made out against the applicant herein. The fact of error in cheque numbers which were mentioned in the legal notice & complaint is not such a serious mistake, rather it is only a typographical mistake, which can be fatal to the complaint filed by the opposite party no.2 and the said mistake has already been corrected by making the correction in the complaint and subsequently the trial court has also taken note of the correct cheque numbers and thereupon summoned the applicant herein. 10. In view thereof, this Court does not find any manifest error which warrant any interference by this Court in exercise of powers under of Section 482 Cr.P.C., therefore, the same is accordingly dismissed. However, since the instant case is pending for more than six years, therefore, the trial court is directed to conclude the proceedings expeditiously preferably within a period of six months from the date of production of a certified copy of this order, if there is no legal impediment. Order Date :- 29.7.2024 Shubham Arya (Anish Kumar Gupta, J.)