Suresh Saini v. State of U.P & Anr.

Heard Sri Abhay Mishra, learned counsel for the applicant as well as Sri Rajeev Kumar Singh, learned A.G.A. appearing for the State and perused the record.

The instant application under Section 482 Cr.P.C. has been filed for quashing the impugned summoning order dated 25.07.2022 as well as entire proceedings of Complaint Case No.7508 of 2022 (Yogesh Kumar Vs. Suresh Saini), under Section 138 N.I. Act, Police Station Katghat, District Moradabad, pending in the court of A.C.J.M.-I, Moradabad.

Contention of learned counsel for the applicant is that the impugned complaint was filed in the year 2019 regarding four cheques, which were not issued in discharge of any liability. It is further submitted that the opposite party no.2 had again filed a complaint on 02.03.2022 against the applicant regarding four cheques under Section 406 I.P.C. and thereafter, applicant also filed a complaint against the opposite party no.2 on 06.06.2022, under Section 406, 504 I.P.C. It is also submitted that the story in the impugned complaint is different from the story in the subsequent complaint of the opposite party no.2 filed on 02.03.2022 against the applicant under Section 406 I.P.C. It is next submitted that in the impugned complaint transaction shown in the subsequent complaint filed on 02.03.2022 was not mentioned, therefore, it is concealment of fact. In support of his contention learned counsel for the applicant has relied upon the judgements of Apex Court in the cases of Oswal Fats and Oils Limited Vs. Additional Commissioner (Administration), Bareilly Division, Bareilly and others, (2010) 4 SCC 728, K. Jayaram and others Vs. Bangalore Development Authority and others, (2022) 12 SCC 815, Kishore Samrite Vs. State of U.P. and others, (2023) 2 SCC 398, in which the Apex Court has observed that if there is a concealment of fact while filing the complaint then this itself a ground to reject the complaint. On the judgement of Indus Airways Private Limited and others Vs. Magnum Aviation Private Limited and another, (2014) 12 SCC 539, relied by counsel for the applicant, Apex Court has observed that if there is no liability for issuance of cheque then no offence under Section 138 N.I. Act is made out.

Per contra, Sri Rajeev Kumar Singh learned A.G.A. has submitted that there is no illegality in the impugned proceeding as the impugned complaint itself filed in the year 2019 and subsequent complaint filed by the opposite party no.2 against the applicant in the year 2022, therefore, not mentioning the transaction which has been discussed in subsequent complaint will not amount to concealment of fact in the earlier complaint.

Considering the aforesaid submissions of learned counsel for the parties and on perusal of record, it appears that in the complaint it is mentioned that the amount of Rs.25,00,000/- was paid to the applicant by the opposite party no.2 and subsequently, four cheques of Rs.5,00,000/- each was issued by the applicant and the signature on these cheques is not disputed. Therefore, presumption under Section 139 of N.I. Act will be attracted and there is no illegality in issuance of process against the applicant under Section 138 N.I. Act. So far as the contention raised by learned counsel for the applicant that real transaction has not been mentioned in the impugned complaint, though, same was mentioned in subsequent complaint is concerned. These grounds are defense of the applicant which can be considered during trial but cannot be a ground to quash the impugned proceeding.

So far as the judgement relied upon by learned counsel for the applicant are concerned, the same are not applicable in the present case because for the proceedings under Section 138 N.I. Act averments required as per Section 138 N.I. Act are necessary not the other details.

In view of the above, this Court does not find any illegality in the impugned proceedings and the present application is dismissed. Order Date :- 5.12.2024 Jitendra