Om Prakash, J. - (1.) The present application u/s 482 CrPC has been filed by the applicant with the prayer to quash the entire criminal proceedings of complaint case no. 363 of 2009 under Section 138 Negotiable Instruments Act (in short 'the Act'), P.S. Hari Parvat, District Agra pending before the Additional Chief Judicial Magistrate / Additional Civil Judge (SD), Court No.5, Agra as also the summoning order dated 9.10.2009. Further prayer has been made to stay the further proceedings of the aforesaid case.
(2.) Heard Shri Brij Gopal Tripathi, learned counsel for the applicant, Shri J.K. Srivastava, learned counsel for the complainant-opposite party no.2 as well as the learned AGA appearing for the State and perused the record. It is submitted by the learned counsel for the applicant that the cheque in question, said to have been issued in the matter, was not issued in discharge of any legally enforceable debt or liability. The cheque presented before the Bank was only as security cheque. Though the cheque in question was returned on the ground of insufficiency of fund yet notice sent to the applicant was never served, hence, the summoning order passed in the matter is illegal and without application of judicial mind. It is further submitted that nothing has been mentioned in the complaint or affidavit about the existing debt or liability. The concerned Magistrate did not consider this fact and erred in passing the impugned order. Cheque said to have been issued in the matter doesnothing attract essential ingredients required under Section 138 of the Act. In support of his submissions, learned counsel for the applicant placed reliance on the following decisions: 1. Amanullah and another v. State of Bihar and others, (2016) 6 JT 699. 2. M/s Indus Airways Pvt. Ltd. and others v. M/s Magnum Aviation Pvt. Ltd., 2014(85) ACC 958. 3. M.S. Narayana Menon Alias Mani v. State of Kerala and another, (2006) 6 JT 39. 4. Joseph Vilangadan v. Phenomenal Health Care Services Ltd. and another, 2010 Law-Suit (Bom) 2063.
(3.) On the other hand, learned counsel for the complainant / opposite party no.2 as well as the learned AGA appearing for the State submitted that in the application u/s 482 CrPC and the rejoinder affidavit, the applicant himself has admitted / mentioned the liability for which the cheque was issued. Nondisclosure of any debt or liability in the complaint if the cheque in question was dishonoured on the ground of insufficiency of fund, will not create any bar in continuance of proceeding under Section 138 of the Act. Signatures on the cheque is not denied. All the facts raised before this Bench may be raised during trial before the Court concerned. There is no illegality or infirmity in the impugned summoning order. It is further submitted that it has been clearly mentioned in the complaint and in the affidavit that cheque was issued by the applicant and the same was presented before the Bank.;