Ashok Kumar Diwedi vs State of U. P. - 2023 Supreme(All) 2102

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 2102

IN THE HIGH COURT OF ALLAHABAD
SAMIT GOPAL, J.
Ashok Kumar Diwedi – Appellant
Versus
State of U.P. and Another – Respondents
Application U/s 482 No. 610 of 2023
Decided On : 25-01-2023

Advocates:
Advocate Appeared:
For the Appellant : Dharmendra Kumar Srivastava.
For the Respondent: Ghan Shyam.

Headnote:(A) Code of Criminal Procedure, 1973 - Section 482 - Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Applicant sought to quash the proceedings for alleged lack of a legally enforceable debt and procedural noncompliance. Court found the complaint supported by sufficient evidence, deeming the decision to summon justified. (Paras 9-14)

(B) Criminal Procedure - Quashing of proceedings - Powers exercised with caution; the High Court does not engage in merits at this stage, focusing solely on prima facie evidence. Dismissal affirmed as there were disputed questions of fact. (Paras 9, 14)

Facts of the case:
The applicant challenged the summon for a cheque of Rs.9,20,800/- dishonoured due to alleged modifications. The applicant claimed theft and irregularities in the debt assertion.

Findings of Court:
The court found no illegality in the summon order, affirming the procedure followed was justified and contained sufficient detail.

Issues: The main issues include the existence of a legally enforceable debt and procedural adherence by the complainant.

Ratio Decidendi: The court emphasized that during the summoning process, the examination is limited to establishing a prima facie case and that others’ defences cannot be evaluated at this stage.

Result: Application dismissed.

Table of Content
1. complaint of cheque dishonour and its procedural context. (Para 4 , 5)
2. arguments related to quashing the complaint. (Para 6 , 7 , 8)
3. court's analysis on principles of law regarding summons. (Para 9 , 10 , 11 , 12 , 13 , 14)
4. application dismissed; no case for interference. (Para 15 , 16)

JUDGMENT :

SAMIT GOPAL, J.

1. List revised.

2. Heard Sri Dharmendra Kumar Srivastava, learned counsel for the applicant, Sri Vivek Mishra, learned counsel for the opposite party No. 2, Ms. Arti Agarwal, learned counsel for the State and perused the record.

3. Sri Vivek Mishra states that he has filed his vakalatnama on behalf of the opposite party No. 2 today in the office. The same is not on record. Office to restore the same in the file and make a note about it in the order sheet.

4. The present application under Section 482 Cr.P.C. has been filed by the applicant-Ashok Kumar Diwedi with the following prayers:

It is further prayed that this Hon'ble Court may graciously be pleased to stay further proceedings of the Complaint Case No. 9369/2021, Rakesh Kumar Chaturvedi vs. Ashok Kumar Diwedi , U/S 138 of N.I. Act, pending in the court of Chief Judicial Magistrate, Auraiya, District Auraiya, during pendency of the present application; otherwise the applicant shall suffer an irreparable loss.

And/or pass such other or further order as this Hon'ble Court may deem fit and proper in facts of the case.”

5. The facts of the case is that a complaint dated 16.12.2021 was filed by the opposite party No. 2 against the applicant with the allegations that the cheque dated 03.08.2021 for Rs.9,20,800/- drawn in his favour stood dishonoured by the bank on 30.10.2021. The bank vide its memo informed him about it after which a notice dated 10.11.2021 was given to the accused-applicant but in spite of the same money has not been given to him and then he has filed the present case. In support of the complaint, he has filed his evidence in the form of an affidavit dated 16.12.2021 as a statement under Section 200 Cr.P.C. The trial court after going through the records summoned the accused-applicant for the offence under Section 138 Negotiable Instruments Act vide order dated 13.07.2022. The present application has thus been filed with the aforesaid prayers.

6. Learned counsel for the applicant argued that the proceedings as initiated against the applicant are an abuse of process of court. It is argued that there is no legally enforceable debt upon the applicant. It is further argued that the complainant has not complied with the provisions of Section 204(2) Cr.P.C. by submitting list of his witnesses. It is argued while placing para-10 of the affidavit that as a matter of fact the applicant had borrowed Rs.20,800/- from the opposite party No. 2 and had tried to refund the same through cheque but the said cheque was stolen and there was interpolation by adding figure 9 and nine lakhs in words before twenty thousand eight hundred and then the said cheque was presented for encashment in the bank. It is argued that the applicant informed the bank about theft of the said cheque vide his letters dated 23.09.2021 and 11.11.2021. It is argued while placing Para-11 of the affidavit that the said cheque was misused and presented in the bank. The applicant also filed an application under Section 156(3) Cr.P.C. pertaining to the same which was treated as a complaint vide order dated 29.10.2022 passed by the concerned trial court. It is argued tha