The basic ingredients of the offence under Section 138 of the Negotiable Instruments Act are present if the accused admits to taking a loan and issuing blank cheques as security.

Court No. - 64

Case :- APPLICATION U/S 482 No. - 23852 of 2022

Applicant :- Rajeev Billa

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Rakesh Kumar Srivastava

Counsel for Opposite Party :- G.A.,Alok Kumar Singh

Hon'ble Saumitra Dayal Singh,J.

Heard Sri Rakesh Kumar Srivastava learned counsel for the

applicant, learned AGA for the State and Sri Alok Kumar Singh

learned counsel for the complainant-opposite party No.2.

Supplementary affidavit filed today, taken on record.

Present application has been filed to quash the proceedings in

Complaint Case No. 1279 of 2020 (Shiv Kumar Gupta Vs.

Rajeev Billa) pending in the Court of Chief Judicial

Magistrate/Additional Civil Judge (Senior Division), Court No.

2 Ghaziabad.

Submission of learned counsel for the applicant is, though the

applicant had availed certain loan facility from the opposite

party No. 2 and had handed over blank signed cheques in

security thereof, the applicant had never entered into any

transaction of sale or purchase of immovable property. The

agreement to sell dated 11.2.2019 set up by the opposite party

No. 2 is a sham document. In the other proceeding instituted by

the opposite party No. 2 being Case No. 3703 of 2021 (State

Vs. Rajeev Billa) involving allegation of offence under Sections

420, 323,504,50 IPC, Police Station Kavi Nagar, District

Ghaziabad arising from the said disputed agreement to sell, the

applicant has filed an application under Section 319 Cr.P.C for

production of the original document, that has been allowed.

Thus, it has been submitted, it is a material fact to be

determined first whether the above agreement to sell is a

genuine document or not. Unless that issue is first decided, the

impugned proceedings initiated under Section 138 of the

Negotiable Instruments Act, 1881 in Complaint Case No. 1279

of 2020 may never be concluded. If such course is allowed to

be adopted, conflicted conclusions may arise in the two

criminal cases lodged against the applicant arising from the

same document.

On the other hand, learned counsel for opposite party No.2

would submit, the complaint case is proceeding in compliance

of the direction issued by this Court to conclude the same

within a period of six months. At present, opposite party No. 2

is being examined. Therefore, no case is made out to offer any

interference at this stage.

Having heard learned counsel for parties and having perused

the record, while the exact nature and the status of the

agreement to sell dated 11.2.2019 may remain an issue to be

examined, on the own showing of the applicant, in paragraph-4

of the supplementary affidavit, it has been admitted that the

opposite party No. 2 had advanced money on loan to the present

applicant. It is against that loan that the applicant further claims

to have issued certain blank cheques etc. Thus the basic

ingredients of offence alleged under Section 138 of the N.I. Act

exist on the own admission of the applicant insofar as he admits

a loan having been advanced to him by the opposite party No.

2. Whether the cheques were blank or had been issued towards

repayment of the loan would remain to be considered by the

court below. Also the facts and conduct may remain to be

examined by the learned court below. However, it cannot be

said that ingredients of the offence alleged are lacking or the

complaint suffers from such inherent defect as may not allow it

to be proceeded with, at present. As to the original agreement to

sell dated 11.2.2019, same has already been produced before

the competent court.

In view of the above, no good ground is made out to offer any

interference with the complaint case at this stage. The

application is accordingly dismissed.

Order Date :- 6.1.2023

Faraz

Digitally signed by :-

FARAZ AHMAD

High Court of Judicature at Allahabad