AKASH AGRAWAL Vs. STATE OF UP AND ANOTHER

JUDGEMENT

(1.) This application under section 482 Cr.P.C. has been filed seeking quashing of the order dated 24/05/2017 passed by the Additional Chief Judicial Magistrate, court No. - 8, Aligarh as well as entire proceeding of complaint case No. 296 of 2017, Zakir vs Akash Agrawal, under sections 138, Negotiable Instrument Act, PS Quarshi, District Aligarh.

(2.) The facts in brief of this case are that a complaint was presented by O P no. 2, Zakir son of Alla Bux in the trial court alleging therein that he had taken on rent a shop from one Smt. Rekha Agrawal alias Rekha Mittal and was in possession of the same since 1961 as a tenant. The owner of that shop namely, Rekha Mittal agreed to sell that shop in favour of applicant - accused Akash Agrawal and it appears that an oral tripartite agreement was held between the O.P. No. 2, Rekha Mittal and Akash Agrawal that in lieu of vacating the said shop, an amount of Rs. 12,50,000/- (twelve lakhs fifty thousand) shall be paid by accused applicant to the O.P. No. 2, in pursuance of which the sale deed appears to have been executed of the said shop in favour of Akash Agrawal by Rekha Mittal and an amount of Rs. 3,68,000/- (three lakh sixty-eight thousand) was paid by accused applicant to the O.P. No. 2, while the remaining amount was paid by Akash Agrawal by way of issuing two cheques: one of Rs. 4,000,00/- being cheque No. 518963 dated 01/04/2016 and the other cheque of Rs. 4,82,000/- (four lakh eighty-two thousand) being cheque No. 518962 dated 01/07/2016 which were to be encashed from Punjab National Bank Branch, Railway Road, Aligarh. One of these cheques namely cheque No. 518963 was deposited by the O.P. No. 2 on 01/04/2016 in his bank account in Bank of Patiala branch, Kela Nagar, Civil lines, Aligarh, which got bounced due to insufficient amount on 24/05/2016. Thereafter, on assurance by the accused applicant that the said amount could be encashed by presenting the said cheque again, the same was deposited twice further but with the same result. Ultimately the O.P. No. 2 issued notice through his counsel the accused applicant stating that in case within 15 days of the said notice the said amount is not paid to him, he would initiate legal proceedings, but no reply was given of the said notice relating to filing of the present complaint, case regarding which is pending in the court of ACJM- IV, Aligarh. The other cheque issued by accused applicant for an amount of Rs. 82, 000/- dated 01/07/2016 was also presented by the O.P. No. 2 in his account in Bank of Patiala, Kela Nagar, Civil lines, Aligarh, regarding which the accused applicant informed the bank mischievously that its payment be not made because the said cheque had been stolen and, accordingly, the same was returned to him unpaid. When the accused applicant was approached by the O.P. No. 2 to know as to why he did so, O.P.No. 2 was threatened and was ill treated and, thereafter, he sent a notice to the accused applicant through his counsel dated 01/08/2016 mentioning therein that they should make the payment within 15 days of receipt of the said notice and should take back his cheque, but the accused applicant did not make the payment of the said cheque and misappropriated the said amount.

(3.) The record reveals that the learned trial court vide order dated 24/05/2017 summoned the accused applicant to face trial under Section 138 of the Negotiable Instrument Act in respect of non-payment of the amount of Rs. 4,82,000/- (four lakh eighty-two thousand) vide cheque No. 518962 dated 01/07/2016 having bounced for insufficient amount on the basis of evidence recorded by the trial court under sections 200 Cr. P.C. as well as 202 Cr.P.C.