Allahabad High Court
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD ********* Neutral Citation No. - 2024:AHC:114336 (Sl.No.33) Court No. - 79 Case :- APPLICATION U/S 482 No. - 22557 of 2024 Applicant :- Pawansut Automobile India Pvt Ltd And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajay Kumar Singh,Ashish Kumar Singh,Tejas Singh Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J. 1. Heard Sri Tejas Singh, learned counsel for the applicants, Sri Brijesh Kumar Dwivedi, learned AGA for the State and Sri
Legal Reasoning
the N.I. Act, prima facie case is made out against the applicants herein and the other averments whether there was a legally enforceable debt and any requirement of endorsement in terms of Section 56 those are the contentions, which will be available to the applicants during the trial. 10. Further, a typographical error in the complaint with regard to the mentioning of the fact that cheque was drawn on Yes Bank is a typographical error, which is evident from the legal notice as well as the affidavit filed in support of the complaint and the same is not such a fundamental defect, which can not be cured by the opposite party No.2 during the trial and merely on that ground, the complaint cannot be quashed. 11. In view thereof, the instant application under Section 482 Cr.P.C. lacks merit and is, accordingly, dismissed. Order Date :- 18.7.2024 LN Tripathi (Anish Kumar Gupta,J.)
Arguments
Punit Kumar Pandey, Advocate, holding brief of Sri Rahul Chaudhary, learned counsel, who proposed to appear on behalf of opposite party No.2. 2. The instant application under Section 482 Cr.P.C. has been filed with a prayer to quash the summoning order dated 1.3.2024 as well as entire proceedings of Complaint Case No.959 of 2024 (M/s Mahindra & Mahindra Financial Services Ltd. vs. Pawansut Automobile India Pvt. Ltd. and others) under Section 138 of Negotiable Instruments Act, 1881, Police Station-Hariparwat, District-Agra, pending in the court of Additional Judicial Magistrate, Court No.5, Agra. 3. Learned counsel for the applicants submits that applicants have availed the loan facility from the opposite party No.2- Finance Company and has also repaid the amount time to time in terms of the agreement arrived at between the parties. Learned counsel for the applicants further submits that the said agreement between the parties also contains the arbitration clause and the arbitration proceedings are still pending with regard to ascertainment of any amount due to be paid by the applicants herein. He has further argued that the proceedings under SARFAESI Act have also been initiated by the said finance company, therefore, what are the liabilities to be paid by the applicants herein is yet to be determined unless the same is determined. The opposite party No.2 cannot be permitted to present the cheque, which was issued by the applicants as a security amount for repayment of the loan facility. Learned counsel for the applicants further states that though in the legal notice issued by the opposite party No.2 for dishonour of cheque, the cheque has been described to have been drawn on the Punjab National Bank. However, in the complaint, it has been alleged in paragraph-3 that the said cheque was drawn on Yes Bank, therefore, he submits that complaint is not commensurate with the legal notice issued, therefore, he has prayed for quashing of the entire proceedings of the complaint case. 4. Learned counsel for the applicants has also relied upon paragraph 20 of the judgment of the Apex Court in Dashrathbhai Trikambhai Patel vs. Hitesh Mahendrabhai Patel and another : (2023) 1 SCC 578 and contends that unless legally enforceable debt is determined, no offence under Section 138 of N.I. Act shall be made out. He has further relied upon paragraph 33 of the aforesaid judgment to contend that since the part-payment of the loan facility has already been made, therefore, there must be some endorsement on the part of opposite party No.2 on the said cheque, which has not been done, therefore, the complaint is not maintainable. 5. Per contra, learned AGA submits that from perusal of the complaint as well as the accompanying affidavit along with the complaint, it is evident that the said cheque was issued by the applicants in part-payment of the loan amount, which was got dishonoured for which after giving the legal notice, complaint under Section 138 N.I. Act has been filed by the opposite party No.2. Learned AGA further submits that in the legal notice, the description has been properly given as the cheque was drawn on the Punjab National Bank and the same is also reflected in the affidavit accompanying the complaint. Therefore, in the complaint, the cheque was drawn on Yes Bank in the complaint is nothing, but a typographical error and the same can be corrected and such a defect is not such a fundamental whereby it can be concluded that no offence under Section 138 of N.I. Act is made out and the complaint warrants to be quashed as the applicants have failed to comply with the legal notice in which there is no infirmity. 6. Learned AGA further submits that in view of the presumption under Section 139 of N.I. Act, it shall be presumed that the impugned cheque was issued against the legally enforceable debt, however, such presumption is a rebuttable presumption and the applicant shall have every right to rebut the said presumption during the trial. So far as the endorsement in terms of Section 56 is concerned, learned AGA submits that since in the complaint, it is not mentioned that any part-payment towards the cheque amount has ever been made by the applicants, therefore, there was no question of any endorsement. In view thereof, learned AGA prays for dismissal of the instant complaint. 7. Learned counsel for the opposite party No.2 submits that in view of the presumption under Section 139 of N.I. Act, prima facie, a case has been made out against the applicants and the submissions made by learned counsel for the applicants are defences which can very well be taken during the trial. The pendency of the arbitration as well as the proceedings under the SARFAESI Act could not preclude the opposite party No.2 from initiation of the proceedings under Section 138 of N.I. Act. 8. Having heard the rival submissions made by learned counsel for the parties, this Court has carefully gone through the record of the case and from the record of the case, it is reflected that admittedly the applicants have availed loan facility from opposite party No.2 and as per the averments made in the complaint, the aforesaid cheque of Rs.1 crore was issued by the applicants for part-payment of the said loan amount and on presentation, the same was dishonoured, thereupon a legal notice was issued and despite the service of legal notice, the applicants have failed to make the payment of the said cheque amount, thereupon the complaint under Section 138 N.I. Act has been filed. 9. Therefore, in view of the presumption under Section 139 of