LAWS(ALL)-2011-12-287

ARUN GOYAL Vs. STATE OF U.P.

Decided On December 08, 2011
Arun Goyal Appellant
V/S
STATE OF U.P. Respondents

JUDGEMENT

(1.) Heard learned counsel for the applicant and learned A.G.A.

(2.) The present application under section 482 Cr.P.C. has been filed on behalf of the applicants with a prayer to quash the entire proceeding of Complaint Case No. 33 /2004 under section 138 Negotiable Instrument Act which shall in brevity hereinafter referred to as the Act Police Station Nazibabad District Bijnore pending in the Court of Additional Civil Judge (Jr.Division) and also the orders dated 1.12.2007 and 19.3.2008 passed by the Additional Civil Judge (Jr.Division) /Judicial Magistrate Binor in the aforesaid case.

(3.) The brief genesis of the facts giving rise to the present case is that the opposite party no.2 filed a complaint on 23.6.1999 against the applicants namely Arun Goyal, Pramod Kumar Goyal and Baliram and one Ramesh Chandra (now dead) who are Executive Director, Chairman & Managing Director, Director of Rama Paper Mills Ltd. and one other namely Ramesh Chandra (now deceased) under section 138 N.I. Act and section 406,420,120B IPC with the allegation that the opposite party no.2 had deposited Rs. 1,50,000 Lacs under the scheme of fixed deposit . On the date of its maturity , the applicants had issued cheque no. 0579229 for Rs. 1.50,000/- lacs payable at Bank of Baroda Branch Nazibabad . Another cheque no. 0579306 for a sum of Rs. 5,625/- dated 20.5.99 payable at Bank of Baroda was issued by the applicant no.1 (Arun Kumar Goyal) in relation to interest during the period from 20.2.99 to 20.5.99 . Both the cheques were accepted by the complainant on the assurance of the applicants that those cheques would be encashed immediately. The complainant deposited both the cheques in Co.operative Bank ,Branch Nazibabad . On 21.5.1999, both the cheques were returned to the complainant with the endorsement that there was insufficient money in the account of the said Company. The complainant approached applicants 'company intimating that the cheques were bounced on account of insufficient amount in the account of the company but applicants did not pay any heed on the grievance of the complainant and the grievance of the complainant remained unhealed. In the pressing situation, the complainant sent legal notice to the company on 25.5.99 which was responded by the applicant no.1 that the applicants accepted liability of payment and requested to extend the time for payment of money till 31.12.99 but all the efforts of the complainant went in vain as no amount was paid by the company thus the amount to the tune of Rs. 1,55,625/- remained unpaid . The complainant was not paid the amount on account of some conspiracy amongst the applicants who were responsible for the payment of money as such the applicants have deliberately and knowingly committed cheating and fraud with the complainant holding themselves liable to be prosecuted under section 138 NI Act read with section 460/420/120B IPC as prima facie cognizable offence is made out against the applicants. On the basis of aforesaid complaint after recording the statement of the complainant under section 200 Cr.P.C. and going through the receipts of the cheques and the copy of the registered notice ,the court below prima facie found that cognizable offence is made out against the applicants and other accused persons and the Chief Judicial Magistrate summoned the applicants and other accused persons under section 138 Negotiable Instrument Act and section 406/120B IPC vide order dated 1.12.2007 . The trial court proceeded with aforesaid case. The applicants filed objection against the summoning order . The court below arrived at the conclusion that no offence was made out against the applicants no.2,3,and 4, hence the proceedings were quashed against Bali Ram, Pramod Goel and Ramesh Jain. The case was proceeded against the applicant no.1 alone. The said order was passed on 4.7.2002 . During the pendency of the trial, one Ramesh died thus the proceedings against Ramesh stood abated. Charges were framed against other accused persons under section 138 N.I.Act and other sections. The prosecution had examined the opposite party no.2 complainant as P.W.1 and the other two witnesses namely Ganesh and Sunil were examined as P.W. 2 and 3 respectively. The applicants were examined under section 313 Cr.P.C. but they did not produce any evidence in defence. The court below after thread bare analysis found that prima facie offence is made out under section 138 N.I.A ct hence convicted all the accused applicants under section 138 N.I. Act with fine of Rs. 25,000/-. In default of payment of fine, they had to undergo six months further imprisonment. Out of the amount of fine, the complainant was entitled to get Rs. 25,000/- while Rs. 5,000/- was deposited in favour of State. The aforesaid order was passed on 8.3.2006.