Applications to summon witnesses must not be engineered to delay the case, and challenging a registered document and claiming set-off are not permissible in proceedings under Section 138 N.I. Act.

Rajeev Misra, J.

This application under Section 482 Cr.P.C. has been filed challenging the order dated 2nd May, 2018 passed by the Additional Chief Judicial Magistrate-IV, Gorakhpur in Complaint Case No. 1332 of 2013 (Avnish Rai vs. Rajesh Kumar), under Section 138 N.I. Act, Police Station Cantt., District Gorakhpur as well as the entire proceedings of the above mentioned complaint case.

2. Heard Mr. Rajiv Lochan Shukla, learned counsel for the applicant and the learned A.G.A. for the State.

3. Perused the application filed by the applicants and also the supplementary affidavit.

4. From the record, it appears that the applicant issued a cheque dated 2nd August, 2013 bearing No. 566694 valued at Rs. 24,71,000/- drawn on State Bank of India, Railway Colony Branch, Gorakhpur to the opposite party no.2. The said cheque was presented by the opposite party no.2 in his bank, but the same was returned unencashed on 22nd August, 2013. Consequently, as per the mandate of Section 138 (b) N.I. Act, the opposite party no.2 sent a legal notice dated 30th August, 2013 to the applicant asking him to pay the amount payable under the disputed cheque. However, when in spite of the aforesaid legal notice, the amount payable under the aforesaid disputed cheque was not paid to the opposite party no.2 by the applicant, the opposite party no.2 filed the complaint dated 26th September, 2013 in terms of Section 138 N.I. Act.

5. Upon perusal of the material on the record and the allegations made in the complaint, the court concerned summoned the present applicant by means of the summoning order dated 17th April, 2014.

6. After expiry of the period of more than four years from the date of filing of the complaint i.e. 26th September, 2013, the applicant filed an application dated 29th January, 2018 praying therein that Kumkum Rai be summoned by the court to give her testimony. The said application was filed on the ground that in lieu of the amount payable under the disputed cheque, the complainant Avnish Rai has got a sale-deed of the house belonging to the Rajesh Kumar executed in favour of his wife Kumkum Rai. Only when the aforesaid witness is summoned, it can be ascertained as to whether there exists any liability against the applicant towards the disputed cheque or not.

7. During the pendency of the application dated 29th January, 2018, the applicant filed another application dated 2nd May, 2018 praying therein that Ram Pravesh may be summoned as a witness so that it may be ascertained as to how much money has been paid by the complainant to Ram Pravesh and Rajesh Kumar i.e. the applicant herein respectively. It will also be ascertained as to under what circumstances the disputed cheque was obtained from Rajesh Kumar I.e the applicant herein. However, it was stated that though the High Court has expedited the disposal of the above mentioned complaint case but no prohibition has been issued by the High Court that the right of the applicant to have an opportunity of hearing and lead evidence has been forfeited. This application dated 2nd May, 2018 was seriously contested by the complainant and it was endorsed on the application dated 2nd May, 2018 itself that the complaint case is at the stage of Section 313 Cr.P.C. for which last opportunity has also been granted to the accused. Only to delay the disposal of the complaint case, the application has been filed.

8. Both the applications dated 29th January, 2018 as well as 2nd May, 2018 came to be rejected by the Magistrate vide order dated 2nd May, 2018. The Magistrate came to the conclusion that the complainant is under legal obligation to proof the allegations made in the complaint himself. Therefore the accused cannot force or direct the complainant to summon a particular witness. On these findings both the applications were rejected by the Magistrate vide order dated 2nd May, 2018. Feeling aggrieved by the order dated 2nd May, 2018, the applicant has now come to this Court by means of the p