Rajesh Dayal Khare, J. - (1.) HEARD Sri Santosh Kumar Nigam, Learned Counsel for the opposite party no.2 and learned A.G.A. for the State respondent. On the request of Learned Counsel for the applicant matter was sent to Mediation Centre on 31.1.2011 and the Mediation Centre, vide its report dated 10.7.2011, has reported that the mediation has failed between the parties. The report of Mediation Centre is on record.
(2.) THE present application has been filed for quashing the proceedings of case No. 293 of 2010 under Section 138 Negotiable Instrument Act, P.S. Kalyanpur District Kanpur Nagar pending in the court of A.C.M.M. II, Kanpur Nagar. It is averred in the affidavit that no offence against the applicant is disclosed and the present prosecution has been instituted with malafide intention for the purposes of harassment.
(3.) 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 averment made in the affidavit relates to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482, Cr.P.C. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur v. State of Punjab, : AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. 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, 245(2) or 227/228, 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.;