Allahabad High Court
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:145074 (Sl.No.36) Court No. - 79 Case :- APPLICATION U/S 482 No. - 25238 of 2024 Applicant :- Gajendra Singh Negi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ganesh Mani Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J.
Legal Reasoning
1. Heard Sri Ganesh Mani, learned counsel for the applicant and Sri Mohd. Shoeb Khan, learned AGA for the State. 2. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the summoning order dated 27.08.2019 and the entire proceeding of Complaint Case No. 345 of 2019 (Umakant Pandey vs.Gajendra Singh Negi), under Section 138 of the Negotiable Instruments Act (in short the 'N.I Act'), P.S. Najirabad, District Kanpur Nagar, pending before the court of Additional Civil Judge (J.D.)-8, Kanpur Nagar. 3. Learned counsel for the applicant raises the main contention in the instant complaint case, which was filed by the opposite party no.2 under Section 138 of the N.I.Act. Vide summoning order dated 27.08.2019, the applicant herein has been summoned. The aforesaid summoning order has been passed by the learned Magistrate, on a printed proforma by filling in the gaps. Therefore, learned counsel for the applicant submits that the practice of passing the orders on printed proforma has been deprecated in various judgments by this Court. He has relied upon the judgments of Co-ordinate Bench of this Court in Ram Kewal vs. State of U.P. and another, 2024 0 Supreme (All) 41, Pankaj Jaiswal vs. State of U.P. and another, 2021 LawSuit (All) 680, Amit Kumar Dwivedi and another vs. Stae of U.P. and another, 2023 0 Supreme (All) 1317 and Roshan Lal alias Roshan Rajbhar and others vs. State of U.P. and another, 2024 LawSuit(All) 946. Therefore learned counsel for the applicant seeks quashing of the summoning order plainly on the ground of that it has been passed on a printed proforma. 4. Per contra, learned AGA submits that from the perusal of the summoning order dated 27.08.2019, photocopy of which has been produced at 57 of the instant application, though it appears to be in a printed proforma, however sufficient application of minds is reflected in the aforesaid summoning order and necessary additions have also been made in the summoning order by the learned Magistrate. The learned AGA further submits that such proforma orders are being passed many times due to the reasons of non-availability of the stenographers in the concerned court and to improve the efficiency of the work by the learned Presiding Officers. Till the application of mind is reflected from the summoning order such proforma orders need not to be interfered with. Learned AGA further submits that the said summoning order was passed in the year 2019, since then, in compliance of the aforesaid order the applicant has appeared before the trial court and has continuously contested the case before the trial court and he has also deposited part payment in pursuance of the cheque amount during the trial of the case as stated by learned counsel for the applicant. Therefore, till a period of five years, he had no grievance with the said summoning order, otherwise also no better order than the order dated 27.08.2019 could have been passed while summoning the applicant. Therefore, no inference at such belated stage is required in the instant case. 5. In rejoinder, learned counsel for the applicant further submits that once the order is illegal by having been passed on a printed proforma, the same shall continue to be illegal for all purposes and mere delay on the part of the applicant would not legalize the same. 6. Having heard the submissions made by learned counsel for the parties, this Court has carefully gone through the record of the case. In the instant case, the complaint under Section 138 of N.I. Act was filed by the opposite party no.2 stating therein that the applicant, who was the partner of the M/s.- Negi Developers was in-charge of the day to day affairs of the partnership firm and the said firm was involved in the business of real estate of selling flats and buildings after constructing the same. In connection with this, the opposite party no.2 had approached the applicant with regard to purchase a flat at the site shown by the applicant in the building named as Negi Enclave. The opposite party no.2 agreed to purchase of flat no.4 of second floor having area of 987.75 sq. ft. for a sum of Rs. 35,55,000/-. After an agreement was executed for purchase of the said flat, the opposite party no.2 has advanced a sum of Rs. 19 lacs to the applicant. However, the building, which was to be constructed by the applicant, the construction of the said building has not yet started. Thereupon the opposite party no.2 insisted for refund of the amount. Thereupon the applicant herein has issued three cheques of Rs. 8 lacs, Rs. 4 lacs and Rs.7 lacs respectively in favour of the opposite party no.2, which were dishonoured on presentation for encashment by the opposite party no.2 for the reasons "stop payment by the drawer." Therefore, from the conduct of the applicant herein, the dishonest intention on the part of the applicant is categorically reflected from the fact after issuing the cheque, he has stopped the payment. 7. After the said dishonour of the aforesaid cheques, the applicant assured the payment, thereof and when the opposite party no.2 again threatened him of criminal prosecution, if the payment is not made, then the applicant again issued the two cheques amounting to Rs. 15 lacs and 4 lacs each in discharge of his legal liability towards the opposite party no.2. Again the said chques were presented for encahsment and were dishonoured for the the reason "stop payment by the drawer'. After dishonour of the cheques issued second time by the applicant, the opposite party no.2 issued the legal demand notice on 11.12.2018 to the applicant, which was served on the applicant on 17.12.2019. Despite the expiry of the notice period, the applicant herein failed to make the payment of the cheque amount. Aggrieved by the same, the instant complaint under Section 138 of the N.I. Act was filed by the opposite party no.2 on 16.01.2019. 8. Thus from the aforesaid facts as narrated in the complaint, which were supported by the documents produced by the opposite party no.2. before the trial court, a prima facie case has been made out against the applicant herein. Thereupon, vide order dated 27.08.2019, the trial court has summoned the applicant. The summoning order reads as under: "पतत्रावलली पपेश हहई। पररिवत्रादली कपे ववदत्रान अधधिवकत्रा कको पररिवत्राद परि ससुनत्रा गयत्रा। पररिवत्रादली दत्रारित्रा यह पररिवत्राद ववपकली कपे ववरुद्ध अन्तगरत धित्रारित्रा 138-एन.आई.एक्ट कपे तहत चपेक अनत्रादरिण कपे पश्चत्रातत् वकयत्रा गयत्रा हहै। ससुनत्रा एववं पतत्रावलली कत्रा सम्यक अवलकोकन वकयत्रा। पररिवत्रादली दत्रारित्रा अपनपे पररिवत्राद कपे समररन मम अपनत्रा शपरपत अन्तगरत धित्रारित्रा 200 द०प्र०सवं० दत्राधखिल वकयत्रा गयत्रा तरत्रा धित्रारित्रा 202 द०प्र०सवं० कपे तहत अवभिलपेखिलीय सत्राक्ष्य कपे रूप मम फकोटकोप्रवत चपेक सवं० 0056002005591 वदनत्रावंवकत 11.11.18 मसु० 15 लत्राखि+4 लत्राखि=19 लत्राखि रूपयपे, बबक मपेमको, नकोवटस ककी छत्रायत्राप्रवत,रिधजिस्टटली रिसलीद प्रस्तसुत वकयत्रा गयत्रा। ममूल चपेक न्यत्रायत्रालय परि वदखित्रायत्रा गयत्रा। पररिवत्रादली परि सत्राक्ष्य अन्तगरत धित्रारित्रा 200 दवं०प्र०सवं० व सत्राक्ष्य अन्तगरत धित्रारित्रा 202 दवं०प्र०सवं० मम प्रस्तसुत अवभिलपेखिखों सपे प्ररम दृष्टयत्रा ववपकली कपे ववरुद्ध धित्रारित्रा 138 एन.आई.एक्ट. कत्रा मत्रामलत्रा बनतत्रा प्रतलीत हकोतत्रा हहै। आदपेश अवभियसुक गजिपेन्द्र धसवंह नपेगली एववं एक अन्य ककी धित्रारित्रा 138 परित्राकत्राम्य धलखित अधधिवनयम कपे अन्तगरत ववचत्रारिण हपेतसु जिररिए समन तलब वकयत्रा जित्रातत्रा हहै। पररिवत्रादली समूचली गवत्राहन दत्राधखिल करिम तरत्रा सम्मन हपेतसु पहैरिवली अन्दरि सपत्राह करिम। सम्मन कपे सत्रार पररिवत्राद पत ककी प्रवतधलवप सवंलग्न ककी जित्रायपे। पतत्रावलली वत्रास्तपे हत्राधजिरिली ववपकली वदनत्रावंक 21.10.19 कको पपेश हको। अवभियसुक यवद चत्राहपे तको वनयत वतधर परि अरवत्रा उससपे पमूवर चपेक ककी धिनरित्रावश पररिवत्रादली कको अदत्रा करि इसककी समूचनत्रा न्यत्रायत्रालय मम प्रपेवषित करि सकतत्रा हहै अरवत्रा न्यत्रायत्रालय मपे चपेक ककी धिनरित्रावश प्रस्तसुत करि सकतत्रा हहै। ऐसली सस्रवत मम उस परि ककोई हजित्रार खिचत्रार अधधिरिकोवपत नहली वकयत्रा जित्रायपेगत्रा। ववपकली कको अधधिकत्रारि हकोगत्रा वक सम्मन प्रत्राप करिनपे कपे 15 वदन कपे अन्दरि चपेक धिनरित्रावश न्यत्रायत्रालय मम जिमत्रा करिपेगत्रा इसकपे धलयपे ववपकली कको ककोई अवतररिक भिसुगतत्रान नहहीं करिनत्रा हकोगत्रा।" 9. Though, the aforesaid summoning order was passed by making necessary additions and alterations in the printed proforma, which practice was largely deprecated by this Court the aforesaid judgments, which are relied upon by the applicant. However from the plain reading of the contents of the summoning order, it cannot be said that the same was passed without application of mind. The application of mind to the facts of the case sufficiently reflected in the summoning order dated 27.08.2019. 10. Therefore, in the considered opinion of this Court, there is no illegality in the summoning order passed by the trial court concerned. Further, since 2019 till filing of the instant application, the applicant has contested the case on merit before the trial court and has admitted the liability and in pursuance thereof, he allegedly made part payment to the opposite party no.2 before the trial court. 11. Therefore, at such belated stage, this Court does not find any good reason to interfere with the summoning order passed on printed proforma. In the considered opinion of this Court, the instant application under Section 482 Cr.P.C. lacks merits and is accordingly, dismissed. 12. However, the trial court is directed to proceed in the matter expeditiously without being influenced by any of the observations made in the instant application,which have been made only for the purpose of deciding he instant application Order Date :- 5.9.2024 Ashish Pd. (Anish Kumar Gupta,J.)