RAJESH DAYAL KHARE ,J. - (1.) HEARD learned counsel for the applicant and learned A.G.A. The present 482 Cr. P. C. petition has been filed for quashing the summoning order dated 29.03.2011 passed by learned Additional Chief Judicial Magistrate, Court No.1, District Pilibhit in Complaint Case No. 2714 of 2009 (Brijlal Vs. Pankaj Kumar), under Section 138 of Negotiable Instrument Act, Police Station Barkhera, District Pilibhit. Learned counsel for the applicant contends that the cheque in question of the applicant was lost regarding which, the applicant had made a written complaint to the authority concerned and the opposite party no.2 taking undue advantage of the same, initiated the present criminal prosecution against the applicant. It is further contended that no amount is due to be paid by the applicant to the opposite party no.2 and further the complaint was barred by time. It is lastly contended that no offence against the applicant is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention.
(2.) FROM the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr. P. C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A. I. R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P. P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge under Section 239 or 227/228, or 245 Cr. P. C. as the case may be through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court. The prayer for quashing the summoning order is refused.
(3.) HOWEVER , it is provided that if the applicant appears and surrenders be fore the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC) For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.;