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IN THE HIGH COURT OF ALLAHABAD
RAJIV GUPTA, J.
M/S Exim Creation And Another - Applicants
Versus
State of U.P. and Another - Opposite Parties
APPLICATION UNDER SECTION 482 NO. - 26224 OF 2023.
Decided On : 21-07-2023
| Table of Content |
|---|
| 1. quashing of summoning order in ni act case. (Para 2 , 3) |
| 2. magistrate's inquiry leading to summoning. (Para 4) |
| 3. dispute over service of notice. (Para 5 , 6) |
| 4. court's reasoning on notice service. (Para 7) |
| 5. dismissal of section 482 application. (Para 8) |
JUDGMENT
Rajiv Gupta, J.
Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.
2. The present application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 9.9.2022 as well as further proceedings of Complaint Case No. 37401 of 2022 ( Mohd. Daood v. Naresh Gupta ), under section 138 of N.I. Act, P.S. Nagphani, District- Moradabad, pending in the Court of Addl. Chief Judicial Magistrate, Court No. 3, Moradabad.
3. As per the allegations made in the complaint, it is alleged that the applicants had issued two cheques bearing Cheque No. 000052 for an amount of Rs. 6 lakh dated 1.3.2022 and Cheque No. 000053 for an amount of Rs. 20 lakh dated 27.4.2022 in favour of opposite party No. 2, however, on presentation of the said cheques, the same was dishonoured by the bank and returned back. After the dishonour of the cheques, a notice was sent to the applicants to make good the payment however, despite being noticed the due amount was not paid as such, the present complaint under section 138 of N.I. Act has been filed.
4. On the basis of the said complaint, learned Magistrate has recorded the statements of the witnesses and after making the requisite enquiry under Sections 200 and 202 CrPC has summoned the applicants to face trial under Section 138 of Negotiable Instrument Act.
5. Learned counsel for the applicants has submitted that the notice has not been served upon the applicants, as such, proceedings under section 138 of N.I. Act cannot be drawn against the applicant.
6. Per contra, learned A.G.A. has submitted that the notice was sent on 5.5.2022 through registered post, which has been served upon the applicants, therefore, the proceedings under section 138 of N.I. Act can be drawn against them.
7. Having considered the rival submissions made by the counsel for the parties and keeping in view the fact that notice was sent on 5.5.2022 through registered post, which has been served upon the applicants, therefore, the proceedings under section 138 of N.I. Act can be drawn against them. The disputed question of service of notice, cannot be considered at this stage when the evidence is yet to come. The impugned order is just, proper and legal and do not call for any interference.
8. The present application under section 482 is devoid of merit and is accordingly dismissed.
Dishonour of a cheque under Section 138 is actionable regardless of claims of stop payment or misplaced cheque, with legal presumptions favoring existence of debt or liability.
Dishonour of a cheque due to insufficient funds constitutes an offence under Section 138 of the N.I. Act, regardless of claims of theft, unless the evidence at trial proves otherwise.
A sole proprietor can be held individually liable under Section 138 of the N.I. Act, even if the cheque was issued as a security. Arguments regarding vicarious liability and misuse are insufficient f....
The court established that for a complaint under Section 138 of the N.I. Act to be maintainable, specific procedural requirements must be met and reflected in the summoning order, including the prese....
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