- (1.) Heard learned counsel for the applicant and learned AGA for the State.
(2.) This application under Section 482 Cr.P.C. has been filed with a prayer to quash the entire criminal proceedings of complaint case no.1373 of 2015 (M/s. Shivram Auto Service Vs. Smt. Aneeta Tiwari) under section 138 of Negotiable Instrument Act, Police Station Naubasta, District Kanpur Nagar pending in the Court of Metropolitan Magistrate, Room No.8, Kanpur Nagar as well as the summoning order dated 10.8.2015 passed in the aforesaid case. Further prayer has been made to stay the proceedings of the aforesaid case. Submission of the learned counsel for the applicant is that applicant has been summoned on the basis of false averments. There was no any liability against the applicant to discharge, therefore, there was no occasion to issue any cheque in favour of the opposite party no.2. The cheque in question was given as security. Earlier, all the dues were accounted for. It was submitted that no offence, as alleged in the complaint, is attracted against the applicant. Therefore, summoning order passed against the applicant is bad in law. Per contra, learned A.G.A. supported the summoning order and argued that complaint was filed within the prescribed period fulfilling all the formalities required under the law. Defence taken by the applicant would require leading of evidence, which can only be done during trial. A prima facie case is made out against the applicant, hence there is no need to quash the summoning order. I have considered the submissions advanced by the learned counsel for the parties and have gone through the material available on record.
(3.) In the instant matter, as is apparent from the record, memo was received regarding dishonour of the cheque in question on 11.6.2015. Demand notice was sent on 29.6.2015, which was served upon the applicant on 30.6.2015. No payment was made within 15 days from the service of the notice. Complaint was filed on 4.8.2015 within the prescribed period after the cause of action arose. The averments made by applicant relate to question of fact, which have to be established during trial by defence evidence. The disputed questions of fact cannot be adjudicated in the proceedings under section 482 Cr.P.C. Thus, considering the above factual situation, when the cheque in question is signed by the applicant and the defence taken by the applicant during course of argument will be available to the applicant during trial, which requires leading of evidence, no case for quashing the proceedings of the aforeaid case is made out. The Application u/s 482 Cr.P.C. is accordingly dismissed.;