HAUSHILA PRASAD MISHRA Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS petition under Section 482, Cr.P.C. has been moved on behalf of the applicant Haushila Prasad Mishra with the prayer to quash the proceedings of case No. 762 of 2001 under Section 138, Negotiable Instruments Act (Dhirendra v. H.P. Mishra) pending in the Court of VIII A.C.J.M., Allahabad in pursuance of the summoning order dated 15.9.2001. This case was listed for hearing on 27.5.2013. On that date learned Counsel for the applicant and the learned AGA were present who were heard. But no one was present on behalf of opposite party No. 2. It has been mentioned here that opposite party No. 2 has already appeared in this case and a counter affidavit tiled on his behalf is available on record.

(2.) THE brief facts of the case are that on 23.7.2001 a complaint was filed by opposite party No. 2 against the applicant under Section 138, N.I. Act, 1881 and. Section 420, IPC. As per allegation opposite party No. 2 and the applicant belong to the same village and they had good relationship with each other. The applicant was in need of money and he requested opposite party No. 2 for a loan of Rs. 12000/ - Keeping in view the need of the applicant opposite party No. 2 gave a sum of Rs. 12 000/ - to the applicant on 6.6.1999 at his Allahpur residence within the local jurisdiction of P.S. George Town, Allahabad. The applicant promised to return the amount within a period of three months to opposite party No. 2. When this period of 3 months was over the applicant did not return the money. Thereafter on persistent insistence on behalf of opposite party No. 2 the applicant gave cheque No. 883558 for a sum of Rs. 12,000/ - to opposite party No. 2 on 21.11.2000 with the request that the later would deposit the cheque in his account after 10.5.2001. The applicant deposited the cheque in his Bank i.e. United Bank of India, Allahpur Branch, Allahabad on 19.5.2001. On 27.6.2001 Banker of opposite party No. 2 informed him that the amount could not be realized as there was no sufficient fund in the account of the applicant. On 30.6.2001 opposite party No. 2 issued a notice by registered post to the applicant. The said notice was given on behalf of opposite party No. 2 by his Counsel. It was mentioned in the notice that the applicant should pay the amount within a period of 15 days but no amount was paid. Thereafter on 23.7.2001 the complaint was filed in the Court of the Magistrate. The learned Magistrate conducted the inquiry and thereafter vide his order dated 15.9.2001 he summoned the applicant to face trial under Section 138, N.I. Act. Feeling aggrieved by filing of such complaint case and summoning order the present petition has been filed.

(3.) AS mentioned earlier in this order no one was present on behalf of opposite party No. 2 on the date when the arguments were heard. It has been submitted from the side of the applicant that notice dated 30.6.2001 is defective as it is in contravention of Clause (b) of proviso attached to N.I. Act. It has further been submitted that the learned Magistrate has not looked into the merits of the case and only on behest of opposite party No. 2 an illegal summoning order has been passed. It has further been submitted that filing of complaint case is an abuse of process of Court. It has also been submitted that the notice under Section 138, N.I. Act is time barred. It has further been submitted that the applicant is a Principal of a High School and he had given a cheque to opposite party No. 2 for depositing the amount for coaching of his son but opposite party No. 2 did not do so and when the applicant demanded back his cheque opposite party No. 2 filed a false complaint case against him. Refuting the contention of the applicant learned AGA has said that it is admitted case of the applicant that he had given a cheque to opposite party No. 2. It has further been submitted that in para 8 of his affidavit a cursory contention has been raised with no details and the applicant has not mentioned any where in his affidavit or rejoinder affidavit that what is the name of his son or in which coaching institute he was to be admitted for coaching. It has further been submitted that the rejoinder affidavit contained a long description of facts and in a petition under Section 482, Cr.P.C. facts can not be analyzed or examined by this Court. It has also been submitted that the notice is not defective nor it is time barred.