Omkar Lohiya vs State of U. P. - 2023 Supreme(All) 2286

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 2286

IN THE HIGH COURT OF ALLAHABAD
MANJU RANI CHAUHAN, J.
Omkar Lohiya - Applicant
Versus
State of U.P. and anr. - Opposite Parties
APPLICATION U/S 482 NO. 6136 OF 2023.
Decided On : 21-04-2023

Advocates appeared:
For the Applicant : Rakesh Kumar Srivastava.
For the Opposite Parties : G.A.

Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Application under Section 482 Cr.P.C. for quashing the summoning order and proceedings of a complaint for dishonoured cheque - The applicant disputed the cheque's signature and argued the complaint lacked ingredients for maintainability under Section 138. The court held that the signature dispute is a matter for trial, as established in Apex Court precedents. (Paras 2, 11, 12)

(B) Criminal Procedure Code, 1973 - Section 482 - The court emphasized that inherent powers should be exercised sparingly and only in clear abuse of process. (Paras 11)

Facts of the case:
The applicant was accused of dishonouring a cheque issued to the complainant as part of a loan agreement. The cheque was dishonoured due to a signature mismatch, leading to the complaint. After legal notice, no payment was made, prompting legal action.

Findings of Court:
The court found no illegality in the Magistrate’s summoning order and affirmed that the applicant’s defense could not be considered for quashing at this stage.

Issues: The primary issues included whether the cheque's signature dispute was grounds for quashing the process and if the complaint had sufficient merit under Section 138.

Ratio Decidendi: The court ruled that the differences in signatures constitute a structural defect, which must be assessed at trial rather than pre-trial. Further, the court reaffirmed the principle that it cannot consider defenses when evaluating a complaint for quashing.

Result: Application dismissed.

Table of Content
1. overview of complaint details and facts. (Para 2 , 3)
2. arguments from both applicant and state regarding the cheque. (Para 4 , 5)
3. court's analysis of legal principles related to section 138. (Para 6 , 7 , 8)
4. legal standards for quashing complaints and prima facie case review. (Para 9 , 10 , 11)
5. conclusion and dismissal of application to quash. (Para 12 , 13)

JUDGMENT

Mrs. Manju Rani Chauhan, J.

Heard Mr. Rakesh Kumar Srivastava, learned counsel for the applicant, Mr. K.P. Pathak, learned AGA for the State and perused the records.

2. The present application under Section 482 Cr.P.C. has been filed to quash the summoning order dated 30.01.2020 as well as the entire proceedings of Complaint Case No.08 of 2020, (Netrapal Awana v. Omkar Lohiya), under section 138 of Negotiable Instruments Act, 1881, Police Station-Phase-II NOIDA, District Gautam Buddh Nagar, pending in the Court of the Additional Court No.3, Gautam Buddha Nagar.

3. Brief facts of the case are that the opposite party no.2 filed a complaint under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') against the applicant stating therein that the applicant and opposite party no.2 are known to each other and on 10.06.2018, the applicant came to the house of opposite party no.2 and requested for Rs.10 lacs, which was needed by him. The aforesaid amount was given to him on 20.06.2018 by the opposite party no.2 with a condition that the same will be returned by the applicant within six months. Thereafter, in December, 2018, when the opposite party no.2 asked the applicant to return the money, the applicant had issued a cheque of Rs.10,00,000/- from Allahabad Bank, Branch-Bhangel, Phase-II NOIDA, Gautambuddha Nagar, bearing cheque no.035621 dated 16.07.2019 in favour of opposite party no.2. On receipt of the same, opposite party no.2 has presented the same before the concerned Bank for encashment on 16.07.2019, but the same was dishonoured due to "Drawer Signature Differ" on 17.07.2019. The aforesaid information was given to the applicant by the opposite party no.2, but the applicant refused to return the amount as taken by him from the opposite party no.2. Thereafter, opposite party no.2 sent a legal notice to the applicant on 26.07.2019 through registered post, which has been received by the applicant on 27.07.2019. After the notice neither any amount was paid nor reply was submitted by the applicant, therefore, the present compliant has been filed on 21.08.2019. Subsequently, the learned Magistrate after recording the statement under Sections 200 and 202 Cr.P.C. summoned the applicant vide order dated 30.01.2020, under Section 138 of the Act.

4. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case. He disputed the signature on the cheque and stated that no such cheque was given by the applicant to the opposite party no.2, hence the ingredients of complaint under Section 138 N.I. Act are missing and, therefore, the proceedings are clearly not maintainable under the Negotiable Instruments Act, 1881. He further submits that another cheque for the same amount, which has been placed at page 43 bearing different signature, has been placed before the bank and dishonoured, for which another complaint has also been lodged. Thus, the summoning order as well as the entire proceedings is liable to be quashed.

5. On the other hand, Mr. K.P. Pathak, learned AGA for the State, has submitted that the difference in signature of the applicant in the cheque very well make out the offence under section 138 N.I. Act as the Apex Court in the case of Messrs. Laxmi Dyechem v. State of Gujarat and others reported in (2012) 13 SCC 375 has held that any such technical reason or endorsement of Bank for dishonour of cheque does not affect/disqualifies the prosecution under section 138 N.I. Act and would constitute the offence under section 138 N.I. Act. He further