JUDGMENT

Mrs. Manju Rani Chauhan, J.

Heard Mr. Sumit Pandey, Advocate holding brief of Mr. Arun Kumar Gupta, learned counsel for the applicant, Mr. Pankaj Srivastava, 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 04.02.2020 as well as the entire proceedings of Criminal Complaint Case No.2931 of 2018, (Kallan Khan v. Gulzar Ahmad Khan), under section 138 of Negotiable Instruments Act, 1881, pending in the Court of the Additional Chief Judicial Magistrate-II, District-Shahjahanpur.

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 opposite party no.2 had agreed to sell certain property to the applicant and to the persons as informed by the applicant, for which Rs.1,00,000/- was already paid by the applicant, however, remaining amount of Rs.3,85,000/- was assured to be given by the applicant to the opposite party no.2 after sometime. Believing the applicant, the property in question was sold to the persons as directed by the applicant. For the amount of Rs.3,85,000/- as agreed between the parties, the applicant had issued a cheque of Rs.3,85,000/- from Axis Bank, Branch Shahjahapur, bearing cheque no.049675 dated 20.07.2018 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 21.07.2018, but the same was dishonoured due to "funds insufficient" on 21.07.2018. 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 25.07.2018 through registered post, which has been received by the applicant on 26.07.2018. After the notice neither any amount was paid nor reply was submitted by the applicant, therefore, the present compliant has been filed on 23.08.2018. Subsequently, the learned Magistrate after recording the statement under Sections 200 and 202 Cr.P.C. summoned the applicant vide order dated 04.02.2020, under Section 138 of the Act.

4. Learned counsel for the applicant submits that the complaint was filed by Kallan Khan, who is now deceased and his legal heirs are pursuing the case, who are already pleaded before the court below. He further submits that the applicant is ready and willing to pay the amount, therefore, the matter is referred to the Mediation Centre as the parties may get the opportunity to settle their dispute.

5. On the other hand, Mr. K.P. Pathak, learned AGA for the State, has submitted that the summoning order passed by the concerned Magistrate is legal and just in the eyes of the law and at this stage, only a prima facie case is to be seen and the complaint cannot be thrown at the threshold. Therefore, the present application is liable to be dismissed.

6. I have carefully considered the submissions advanced by learned counsel for the parties and have also gone through the material available on record.

7. Before proceedings further, it is apposite to give reference of some judgments of the Apex Court as well as this Court, wherein the Apex Court has laid down the guideline for quashing of criminal proceedings arising out of section 138 of N.I. Act, which are as follows:-

i) C.C. Alavi Haji v. Palapetty Muhammed and Another, reported in (2007) 6 SCC 555;

ii) Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, reported in (2014) 12 SCC 685;

iii) Bharat Barrel & Drum Manufacturi