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IN THE HIGH COURT OF ALLAHABAD
MANJU RANI CHAUHAN, J.
Ashok Ram Dular Vishwakarma @ Ashok Kumar Vishwakarma - Appellant
Versus
State of U.P. and Another - Respondents
Application U/S 482 No.25059 of 2019
Decided on : 21-01-2021
CRIMINAL - QUASHING OF SUMMONING ORDER - SECTION 138 OF NEGOTIABLE INSTRUMENT ACT - APPLICANT'S CONTENTIONS - APPLICANT AND COMPLAINANT WERE FAMILY FRIENDS - COMPLAINANT INVESTED RS. 80,00,000/- IN APPLICANT'S FIRM/COMPANY - BUSINESS OF FIRM/COMPANY AFFECTED - APPLICANT ASSURED COMPLAINANT TO INCLUDE HER AS DIRECTOR OF COMPANY - MEMORANDUM OF UNDERSTANDING DATED 17TH AUGUST, 2017 EXECUTED - APPLICANT ISSUED FOUR CHEQUES OF RS. 80,00,000/- TO COMPLAINANT - CHEQUES DISHONOURED - COMPLAINANT ISSUED LEGAL NOTICE TO APPLICANT - APPLICANT FAILED TO MAKE PAYMENT - COMPLAINT FILED UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT - APPLICANT FILED APPLICATION FOR QUASHING OF SUMMONING ORDER - APPLICANT'S CONTENTIONS - COMPLAINANT HAD TRIED TO INTERFERE IN BUSINESS OF APPLICANT - COMPLAINANT HAD THREATENED TO FILE POLICE COMPLAINT AND GO TO COURT - COMPLAINANT HAD FILED RES JUDICATA PROCEEDINGS - COMPLAINANT HAD INITIATED PARALLEL PROCEEDINGS AGAINST APPLICANT - APPLICANT HAD ALREADY PAID ENTIRE AMOUNT TO COMPLAINANT - MEMORANDUM OF UNDERSTANDING WAS UNREGISTERED DOCUMENT - COMPLAINANT WAS NOT APPOINTED AS DIRECTOR OF COMPANY - COMPLAINANT HAD NOT BEEN ATTENTIVE IN LEGAL PROCEEDINGS - LEGAL NOTICE SENT BY COMPLAINANT WAS NOT PROPER - COMPLAINANT HAD FILED COMPLAINT IN COURT WITHOUT JURISDICTION - COMPLAINANT HAD ALTERNATIVE REMEDY UNDER INSOLVENCY AND BANKRUPTCY CODE - APPLICANT'S PROCEEDINGS WERE MALICIOUS AND ABUSE OF PROCESS OF COURT - COMPLAINANT'S CONTENTIONS - APPLICANT WAS RUNNING FIRM AND COMPANY - APPLICANT NEEDED FINANCE FOR DEVELOPMENT OF FIRM AND COMPANY - COMPLAINANT INVESTED RS. 80,00,000/- IN FIRM/COMPANY - BUSINESS OF FIRM/COMPANY AFFECTED - APPLICANT ASSURED COMPLAINANT TO APPOINT HER AS DIRECTOR OF COMPANY - MEMORANDUM OF UNDERSTANDING EXECUTED - APPLICANT ISSUED FOUR CHEQUES OF RS. 80,00,000/- TO COMPLAINANT - CHEQUES DISHONOURED - COMPLAINANT ISSUED LEGAL NOTICE TO APPLICANT - APPLICANT FAILED TO MAKE PAYMENT - COMPLAINT FILED UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT - COURT'S FINDINGS - APPLICANT HAD ADMITTED SIGNATURES ON CHEQUES - PRESUMPTION THAT CHEQUES PERTAINED TO LEGALLY ENFORCEABLE DEBT OR LIABILITY - APPLICANT HAD TO RAISE PROBABLE DEFENCE - APPLICANT HAD FAILED TO RAISE PROBABLE DEFENCE - APPLICANT HAD FAILED TO DISCHARGE BURDEN OF PROOF - APPLICANT'S CONTENTIONS REJECTED - COMPLAINT CASE FILED BY COMPLAINANT WAS MAINTAINABLE - COURT HAD JURISDICTION TO TRY COMPLAINT CASE - APPLICANT'S APPLICATION DISMISSED.
Fact of the Case:
APPLICANT AND COMPLAINANT WERE FAMILY FRIENDS - COMPLAINANT INVESTED RS. 80,00,000/- IN APPLICANT'S FIRM/COMPANY - BUSINESS OF FIRM/COMPANY AFFECTED - APPLICANT ASSURED COMPLAINANT TO INCLUDE HER AS DIRECTOR OF COMPANY - MEMORANDUM OF UNDERSTANDING DATED 17TH AUGUST, 2017 EXECUTED - APPLICANT ISSUED FOUR CHEQUES OF RS. 80,00,000/- TO COMPLAINANT - CHEQUES DISHONOURED - COMPLAINANT ISSUED LEGAL NOTICE TO APPLICANT - APPLICANT FAILED TO MAKE PAYMENT - COMPLAINT FILED UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT - APPLICANT FILED APPLICATION FOR QUASHING OF SUMMONING ORDER.
Finding of the Court:
APPLICANT HAD ADMITTED SIGNATURES ON CHEQUES - PRESUMPTION THAT CHEQUES PERTAINED TO LEGALLY ENFORCEABLE DEBT OR LIABILITY - APPLICANT HAD TO RAISE PROBABLE DEFENCE - APPLICANT HAD FAILED TO RAISE PROBABLE DEFENCE - APPLICANT HAD FAILED TO DISCHARGE BURDEN OF PROOF - APPLICANT'S CONTENTIONS REJECTED - COMPLAINT CASE FILED BY COMPLAINANT WAS MAINTAINABLE - COURT HAD JURISDICTION TO TRY COMPLAINT CASE - APPLICANT'S APPLICATION DISMISSED.
Issues: WHETHER THE SUMMONING ORDER AND THE ENTIRE PROCEEDINGS OF THE COMPLAINT CASE SHOULD BE QUASHED.
Ratio Decidendi: THE COURT HELD THAT THE APPLICANT HAD ADMITTED SIGNATURES ON THE CHEQUES, WHICH CREATED A PRESUMPTION THAT THE CHEQUES PERTAINED TO A LEGALLY ENFORCEABLE DEBT OR LIABILITY. THE APPLICANT HAD TO RAISE A PROBABLE DEFENCE, BUT FAILED TO DO SO. THE APPLICANT HAD ALSO FAILED TO DISCHARGE THE BURDEN OF PROOF. THE COURT REJECTED THE APPLICANT'S CONTENTIONS AND HELD THAT THE COMPLAINT CASE FILED BY THE COMPLAINANT WAS MAINTAINABLE AND THE COURT HAD JURISDICTION TO TRY THE COMPLAINT CASE. THE APPLICANT'S APPLICATION WAS DISMISSED.
Final Decision: THE COURT DISMISSED THE APPLICANT'S APPLICATION AND REFUSED TO QUASH THE SUMMONING ORDER AND THE ENTIRE PROCEEDINGS OF THE COMPLAINT CASE.
JUDGMENT :
1. This application U/S 482 Cr.P.C. has been filed for quashing the summoning order dated 13th March, 2019 as well as the entire proceedings of the Complaint Case No. 14 of 2019 (Smt. Gyan Devi Vs. Ashok Ram Dular Vishwakarma) under Section 138 of Negotiable Instrument Act, Police Station-Aurai, District-Bhadohi, pending in the Court of Additional Chief Judicial Magistrate, Bhadohi, Gyanpur. Further it has been prayed that during the pendency of the present application, the further proceedings of the aforesaid criminal case be stayed.
2. On 28th June, 2019, a Coordinate Bench of this Court passed following order:
It is submitted by learned counsel for the applicant that the present matter relates to dishonour of cheque and the said matter can be well considered by Mediation Centre of this Court.
It is directed that applicant shall deposit a sum of Rs. 15,000/-within two weeks from today with the Mediation Centre of which 50% shall be paid to the opposite party no. 2 for appearance before the Mediation Centre.
The matter is remitted to the Mediation Centre with the direction that same may be decided after giving notices to both the parties.
It is directed that Mediation Centre shall decide the matter expeditiously preferably within a period of three months. Thereafter the case shall be listed before appropriate Bench in the second week of September, 2019.
Till the next date of listing, arrest of the applicant in Complaint Case No.14 of 2019, (Smt. Gyan Devi Vs. Ashok Ram Dular Vishwakarma), under Section 138 of Negotiable Instrument Act, Police Station Auraiya, District Bhadhoi, pending in the Court of the Additional Chief Judicial Magistrate, Bhadohi, Gyanpur, shall be kept in abeyance.
After depositing the amount, aforesaid, notice shall be issued to the parties and in the case the aforesaid amount is not deposited within the aforesaid period, the interim protection granted above shall automatically be vacated.”
3. On 3rd September, 2020, this Bench passed following order:
Learned counsel for the opposite party no.2 states that on 28.06.2019, the matter was referred to Mediation Centre, however, the mediation between the parties has failed as is also clear from the Mediation Report dated 04.12.2019. Learned counsel for the opposite party no.2 further states that he has served a copy of counter affidavit to the learned counsel for the applicant on 09.12.2019.
Two weeks' time is granted to the learned counsel for the applicant to file rejoinder affidavit.
Put up on 18th September, 2020 in the additional cause list.
Interim order, if any, is extended till the next date of listing.
It is made clear that on the next date, the case will not be adjourned on any ground.”
On 3rd November, 2020, following order was passed by this Bench:
“By order dated 28.06.2019, matter was referred to Mediation Centre.
As per the report of Mediation Centre dated 04.12.2019, mediation has failed, after which, matter was listed on 03.09.2020. However, a mention was made on behalf of Smt. Ushma Mishra on that date to pass over the case for the day and two weeks' time was granted to the learned counsel for the applicant to file rejoinder affidavit and it was made clear that on the next date, the case will not be adjourned on any ground and the matter was posted for 18th September, 2020.
On 29.09.2020 again a request was made for further time on behalf of the applicant to file rejoinder affidavit and two weeks' further time was granted to file rejoinder affidavit.
Mr. Sarveshwari Prasad, Advocate informs that he has been instructed by the husband of Smt. Ushma Mishra, learned counsel for the applicant to get the matter adjourned. Counsel is standing here and requesting for adjournment without the file and is not aware of the earlier orders as
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