In the Latest Order of High Court of Allahabad, Hon’ble Justice Ram Krishna Gautam has refused to interfere in a Petition preferred under section 482 Cr.P.C
The issue involved was with respect to the initiation of criminal proceedings under N.I. Act even before the expiry of 15 days notice period.
An application under section 482 Cr.Pc was filed by the applicant Mr Kamal Chand Patel against the state of U.P and one another. The applicant prayed that order that 21.01.2020 passed by Special Judge N.I. Act, Allahabad and the proceedings in the complaint case no. 1850 of 2017 should be quashed.
The counsel argued before the Allahabad High Court that the entire proceedings under the Negotiable Instruments Act in the case were a clear case of abuse of process of law. He further submitted that the complaint filed was premature because the date of service was not mentioned in the complaint. As per the applicant, the notice was served upon him on 01.12.2017, and the complainant did not wait for 15 days before filing the complaint.
It was also submitted to the Allahabad High Court that even though the cheque first got dishonoured on 13.09.2017, but to bypass the cause of action for limitation it was stated that it got dishonoured again without providing any proof for the same.
Counsel for the applicant further submitted that the cheque was given to the complainant in lieu of security and not because of liability. In this regard, an FIR has also been filed against the complainant.
As per the counsel, their application for discharge was also dismissed. A reference was also made to Vijay Kumar Upadhyay Vs. State of U.P where the Court held that if a cheque is just given for security and not towards a payment, then it will not be covered under the provisions of Section 138 of N.I. Act.
Counsel for the respondents vehemently opposed the arguments raised by the applicants.
Analysis of the Court
The Hon’ble Judge of Allahabad High Court observed that the complainant issued the cheques as payment for buying a piece of land from the accused. The cheque was presented before a bank but was subsequently dishonoured. The issuance of the cheque was an undisputed fact in the case.
Trial court should consider the question if the complaint was premature or if proper service was done after evidence is led. The Court referred to the Supreme Court’s decision in Fiona Shri Khande vs the State of Maharashtra and another where it was held that while issuing process under section 204 CrPc the Court should consider if prima facie case is made for issuance.
The Allahabad High Court observed that as in the instant case, admitted fact of issuance of the cheque is there, dishonour of it by the bank concerned, dishonour memo and receipt of issuance of notice to accused- applicant by the complainant by registered post is there. Non-payment of the above amount is also undisputed; the Court below was correct in regards to the issuance of process for an offence punishable under section 138 Act of N.I. Act.
While considering the submissions of the applicant that there were no grounds for the Court to summon the applicant, the Court opined that in the instant case the complainant has stated that the cheques were issued as consideration for the execution of sales deed. Therefore a case has been made out, and there was no abuse of process of law.
To clarify the issue that when the Court should use powers under section 482 of Cr.Pc the Court referred to various Judgements.
In-State of Andhra Pradesh v. Gauri Shetty Mahesh the Supreme Court held that when exercising jurisdiction under 482 of Cr.Pc the Court should not embark on an enquiry about if the evidence is reliable or not as it is the job of the trial court.
Further in Hamida v. Rashid, the apex court stated that the High Courts should hear the appeals in the case rather than entertain section 482 petitions filed at the early stage of trials to delay the trial.
Hon’ble Judge also referred to State of Bihar v. Murad Ali Khan where it was held that while exercising jurisdiction under section 482 High courts should not embark upon an enquiry if allegations in a complaint are likely to be proved by evidence or not, that is the job of the trial Court.
The decision of the Court
After going through all the arguments, facts and judgements of the Supreme Court, the Court opined that exercise of inherent jurisdiction under Section 482 Cr.P.C. is within limits and the application under section 482 of Cr.Pc filed by the applicant was dismissed.
Title:- Kamal Chand Patel Opposite Party:- State of U.P.
Case No.: APPLICATION U/S 482 No. – 12997 of 2020
Date of Order: 06.10.2020
Coram: Hon’ble Justice Ram Krishna Gautam
Advocates: Counsel for Applicant:- Ravindra Kumar, Arun Kumar Goyal Counsel for Opposite Party:- G.A.