A.F.R.

Court No. - 71

Case :- APPLICATION U/S 482 No. - 21833 of 2022

Applicant :- Rakesh Kanodiya

Opposite Party :- State of U.P.

Counsel for Applicant :- Himanshu Srivastava,Siddhartha

Srivastava

Counsel for Opposite Party :- G.A.,Murari Lal Jain

Hon'ble Mrs. Sadhna Rani (Thakur),J.

Heard learned counsel for the applicant, learned counsel for the

opposite party no. 2 and perused the record.

By means of this application prayer is made to quash the

summoning order dated 10.01.2022 and the entire proceedings of

Case No. 3843 of 2020 (Inspirationj Publication Vs. Rakesh

Kanodiya) pending in the court of Additional Court, Court No. 2,

Agra under Section 138 of Negotiable Instrument Act, Police

Station Kotwali, District Agra.

It is argued by the learned counsel for the applicant that the

applicant is the whole seller of books in District Deoria whereas

the opposite party no. 2 is the publisher of the books in District

Agra. On 31.12.2014 a written understanding was executed

between the two for the year 2015 regarding terms of purchase and

discount on purchase. In this regard, two CTS account payee

cheques were handed over to Pradeep Sehgal, authorised agent of

opposite party no. 2. In the year 2015, the applicant made gross

purchase of Rs. 4,51,207.25 from opposite party no. 2 and paid

Rs. 3,71,612.25 bearing the net purchase consideration after

deducting the discount and all the legal dues of opposite party no.

2 were cleared by the applicant.

However, the applicant received a notice dated 28.01.2021 sent by

the opposite party no. 2 through his Advocate whereby an

outstanding dues of Rs. 1,79,885/- was shown towards the

applicant with due amount of Rs. 79,595.25 and with interest of

Rs. 1,00,290/- till 05.01.2021. The notice was replied by stating

that Rs. 79,595.25 were adjusted against the discount, even then

the opposite party no. 2 filed a complaint under Section 138 N.I.

Act on 10.03.2021 showing that a cheque of Rs. 1,79,885/- issued

by the applicant was dishonoured by the bank on 13.01.2021

because of 'insufficient funds'.

In fact, no cheque of this amount was ever issued to opposite party

no. 2. This was the one cheque out of two CTS account payee

cheques, which were given to Pradeep Sehgal, the authorised agent

of opposite party no. 2 in the year 2015, which is clear from the

endorsement of the receiving of cheque with date 17.01.2015

written under the signatures of Pradeep Sehgal, appended at page-

21 of the paper book. All other cheques issued by the applicant in

the year 2015 were encashed from the bank, thus, there was no

amount in the bank account of the applicant, is false. The opposite

party no. 2 has misused the cheque. Amount claimed is with

interest while the interest was not to be paid and the net amount

was already adjusted with the opposite party no. 2 and nothing was

due towards the applicant. This cheque was issued to the opposite

party no. 2 in the year 2015. Otherwise also, this amount was of

the year 2015, thus, it was a time barred amount. As per Section 26

of the Limitation Act, 1963 for recovery of money the limitation is

of three years and as per explanation of 138 Negotiable Instrument

Act for the purpose of this section 'debt or other liability' means a

legally enforceable debt or other liability. Thus, the time barred

recovery does not come within the legally enforceable debt or

other liability. Hence, the summoning order and the entire

proceedings claiming to be against the law are prayed to be

quashed.

Learned counsel for the opposite party no. 2 submitted that the

handing over the cheque to the authorized agent of opposite party

no. 2 and the signatures on the cheque are admitted and as per the

record, this cheque has been dishonored by the bank. The defence

of the applicant is not to be seen at the time of the prayer of

quashing the summoning order and the entire proceedings of the

complaint and limitation do