Sandeep Tiwari v. Royal Property Developers Mohammadpur Prop. Abdul Mannan
Facts
HIGH COURT OF JUDICATURE AT ALLAHABAD ***** (Sl No.12) Court No. - 79 Case :- APPLICATION U/S 482 No. - 16201 of 2024 Applicant :- Royal Property Developers Mohammadpur And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anil Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J.
Legal Reasoning
8. Since, from the perusal of the record a prima facie case has been made out against the applicants, specifically, in view of presumption under Section139 of the N.I. Act, this Court does not find any good reason to entertain the instant application, when the trial is at the advance stage and the summoning order was issued 7 years back. In view thereof, the instant application is dismissed. 9. Learned trial court is directed to proceed in the matter expeditiously as the proceedings are pending for more than eight years. Order Date :- 12.8.2024 Shubham Arya (Anish Kumar Gupta, J.)
Arguments
1. Heard Sri Anil Kumar Singh, learned counsel for the applicants and Sri Padmakar Rai, learned A.G.A. for the State. 2. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the order dated 14.09.2017 in Complaint Case No. 3800 of 2016, now, Case No. 592 of 2022 (Sandeep Tiwari vs. Royal Property Developers Mohammadpur Prop. Abdul Mannan @ Pappu) under Section 138 of the Negotiable Instruments Act, 1881 (in short, 'the N.I. Act'), pending in the court of learned Judicial Magistrate, Court No. 26, Azamgarh. 3. Learned counsel for the applicants submits that the instant application under Section 138 of the N.I. Act has been filed by the opposite party no.2 on false and fabricated facts, without there being any existing liability towards the opposite party no.2. It is further submitted that in his statement under Section 246 Cr.P.C., the opposite party no.2 has categorically admitted that the land in question has not been sold by the opposite party no.2 in favour of the applicants, rather, it has been sold to some other person. It is further stated in the said statement that the agreement to sell with regard to the land in question was entered into between the applicants and the opposite party no.2 for a sum of Rs. 1,40,00,000/- out of which only Rs. 9,00,000/- has been paid to the opposite party no.2, the rest of the amount has not been paid till date. In further part payment of the said land the impugned cheque for Rs. 12,00,000/- was issued, which was dishonored, thereupon, the instant case was filed. Learned counsel for the applicants further submits that in view of Section 9 of the N.I. Act, the opposite party no.2 cannot be said to be the holder in due course. Therefore, the complaint case under Section 138 of the N.I. Act, on his behalf is not maintainable. 4. In view of the aforesaid submissions, learned counsel for the applicants seeks quashing of the entire proceeding of the instant complaint case filed by the opposite party no.2. Learned counsel for the applicant further submits that when it is transpired that the opposite party no.2 has sold land to some other person, then, he has stopped the payment, therefore, no land transaction as alleged has been finalized. Therefore, no liability arises, thereby, no offence under Section 138 of the N.I. Act is made out against the applicants. Therefore, the instant complaint case is nothing but an abuse of process of law by the opposite party no.2. Therefore, he prays for quashing of the entire proceedings of the instant case. 5. Per contra, learned A.G.A for State submits that in the instant case it has been admitted by learned counsel for the applicants that the cheque has been issued by the applicants from the account of the applicants. In view thereof, the presumption under Section 139 of the N.I. Act, shall come into play against the applicants and such presumption is a rebuttable presumption that can be rebutted by the applicants during the trial of the case before the trial court. It is further submitted by learned A.G.A. that the word used under Section 139 of the N.I. Act are the 'holder of the cheque' not the word 'holder in due course' and 'holder' has been defined in Section 8 of the N.I. Act. Therefore, a prima facie case has been made out against the applicants, therefore, no interference is called for while exercising the powers under Section 482 Cr.P.C. 6. 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, specifically from the complaint it is alleged in the complaint under Section 138 of the N.I. Act, the applicants herein have entered into an agreement to sell with regard to the land in question and in pursuance thereof, the cheque of Rs. 12,00,000/- was issued in favour of the opposite party no.2, which was dishonored and when the opposite party no.2 demanded the said amount of cheque despite the notice given, the applicants have failed to comply with the said notice and no payment was made, Thereafter, the instant complaint was filed on 10.11.2016. Thereupon, vide summoning order dated 14.09.2017, the applicants herein were summoned. Since then, the proceedings are going on before the trial court. In view thereof, from the reading of the complaint and specifically from the submission of learned counsel for the applicants, he has not disputed the issuance of cheque. In view thereof, presumption under Section 139 of the N.I. Act comes into play against the applicants herein. However, such presumption is a rebuttable presumption which can be very well rebutted by the applicants during the trial of the case. The trial is stated to be pending since more than seven years and trial appears to be at the advance stage. In Section 139 of the N.I. Act, the word used is 'holder' of the cheque and the 'holder' of the cheque has been defined in Section 8 of the N.I. Act, which reads as under : "8. "Holder".—The "holder" of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. Where the note, bill or cheque is lost or destroyed, its holder is the person so entitled at the time of such loss or destruction." 7. From the reading of the aforesaid Section, the holder of a cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due from the parties thereto. In the instant case it is not disputed by the applicants that cheque was issued and given to the opposite party no.2 and it was given in the name of opposite party no.2. Therefore, the opposite party no.2 was well covered within the definition of holder in view of Section 8 of the N.I. Act, Therefore, the presumption will be raised in favour of the opposite party no.2 and against the applicants under Section 139 of the N.I. Act. In view of the aforesaid, a prima facie case has been made out against the applicants. In Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Others : (2021) 19 SCC 401, the Apex Court has categorically held that the powers under Section 482 Cr.P.C. should be exercised only in rarest of rare cases and where no prima facie case is made out or where in the opinion of this Court the same amounts to an abuse of process of law.