# Subhash Mittal v. State Of U.P. & Anr - **Citation:** (2016) 8 ILRA 18 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-08-23 - **Bench:** Pramod Kumar Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhash-mittal-v-state-of-u-p-anr-44234 - **Pages:** 4 ## Text 18 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 18 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 23.08.2016 BEFORE THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Application U/S 482 No.- 25129 Of 2016 Subhash Mittal ...Applicant Versus State Of U.P. & Anr. ...Opposite Parties Counsel for Applicant: Virendra Singh Counsel for Opposite Parties: G.A. Held In proceedings under Section 138 of the Negotiable Instruments Act, the primary consideration is whether: the cheque was issued in discharge of a legally enforceable debt or liability, and it was dishonoured. Issues like whether the complainant is a licensed money lender are irrelevant in such proceedings. At the stage of summoning, the court only needs to see whether prima facie case exists; detailed examination of facts is not required. Minor irregularities regarding service of notice or timing of complaint do not vitiate proceedings if: prima facie compliance appears, and no prejudice is caused to the accused. Questions regarding actual service of notice are matters of trial. The plea that cheque was lost and intimation was given to bank/police is a defence issue, requiring evidence, and cannot be adjudicated in proceedings under Section 482 CrPC. Dishonour of cheque due to "stop payment" instructions by the drawer still attracts Section 138 N.I. Act, as it implies non-availability of funds for honoring the cheque. Inherent jurisdiction under Section 482 CrPC cannot be exercised when: the trial court has acted on prima facie material, and disputed facts require evidence. Since no illegality or impropriety was found in the summoning order, the application for quashing was dismissed. CASE LAW CITED None (Delivered by Hon'ble Pramod Kumar Srivastava, J.) 8 All. Subhash Mittal Vs State Of U.P. & Anr. 19 1. In Complaint Case No. 541/IX/2015 (Ram Chandra Sharma Vs. Subhash Mittal) the Court of Judicial Magistrate, Chhata, District Mathura had passed order dated 11.6.2016 by which applicant was summoned for prosecution of offence under section 138 N.I. Act. The summoning order as well as proceeding of said complaint case has been challenged by applicant through present application. 2. Heard counsel for the applicant and AGA and perused the record. 2. Counsel for the applicant contended that in complaint it is mentioned that complainant had given amount of cheque as loan, but he has no licence for profession of money lending. His further contention was that date of service of legal notice after dishonor of cheque was not proved, therefore there is no evidence that complaint was filed after lapse of period of 15 days after service of notice, which is illegality. His another submission was that the applicant's cheques were lost about which police and bank were informed and payment of those cheques were stopped under direction of applicant. In such matter provision of section 138 N.I. Act are not attracted. On the basis of these contentions, it was argued on behalf of applicant that proceedings of trial court should be quashed. 3. So far the contention of no evidence of complainant being money lender is concerned, it is totally unacceptable in proceedings under section 138 of N.I. Act. In such proceeding only this has to be seen as to whether cheque relating to any debt or liability was given to complainant it was dishonoured or not. In present matter there has been prosecution case that for discharge of his liability of loan applicant had handed over the cheque in question to complainant which was dishonoured. 4. So far alleged irregularity about service of notice and filing of complaint is concerned, this contention is also unacceptable. The trial court had observed in impugned order that after dishonour of cheque the complainant has sent registered notice dated 20.3.2015 to applicant and thereafter filed complainant on 7.4.2015. Although, it is not specifically mentioned in this order that after lapse of 15 days' period of service of registered legal notice the complaint was filed, but it is apparent that after about 18 days of sending registered notice, complaint was filed, and it was prima facie found sufficient by trial court at the time of passing the impugned order. In any case, due to this fact no prejudice was caused to applicant. Although it is also contended that legal notice was not served, but this is a fact that will have to properly scrutinized at the proper time during trial by trial court. 5. The another contention of counsel for the applicant is that before institution of the complaint, the bank and police were informed about loss of cheques. This fact may be correct, but whether it has been done in bona fide manner or with malafide intention, is a matter of evidence that can be appreciated only when evidence in that regard are adduced by both the sides. 20 INDIAN LAW REPORTS ALLAHABAD SERIES 6. The last argument of counsel for the applicant was that cheque was not dishonoured for any other reason but was dishonoured because payment was stopped by complainant side, therefore prosecution u/s 138 N.I. Act cannot be carried out in this matter. In this regard, provision of Section 138 of N.I. Act specifically provides that if cheque is dishonoured or returned by bank unpaid either because of amount of money extending to the credit of that account is insufficient to honour the cheque or other reason mentioned in this section, the prosecution may be carried out. The direction of drawer of cheque to bank for not honouring the cheque, in fact, amounts to the fact that amount of money for payment to drawee in relation to that cheque was not sufficient in bank. 7. The summoning order is passed on the basis of prima facie evidence. In present matter trial court has found that cheque relating to bank account of the applicant, when presented in Bank, was dishonoured under direction of applicant and thereafter on service of legal notice within time the amount of cheque was not paid. Prima facie there appears no illegality or impropriety in the proceeding being carried out by trial court that may require exercise of inherent jurisdiction of this court. Therefore, this application is dismissed. ---------- 8 All. Dwarika Prasad Vs State Of U.P. & Ors. 21 (2016) 8 ILRA 21 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 23.08.2016 BEFORE THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Application U/S 482 No.- 25226 Of 2016 Dwarika Prasad ...Applicant Versus State Of U.P. & Ors. ...Opposite Parties Counsel for Applicant: Vinod Singh Counsel for Opposite Parties: G.A. Held At the stage of considering a complaint under Sections 200 and 202 CrPC, the Magistrate must be satisfied that a prima facie case exists for summoning the accused. The Magistrate is not bound to accept all evidence at face value; he can assess whether the evidence is reliable or believable before issuing process. If upon evaluation of evidence the Magistrate finds the complaint doubtful or not credible, he is justified in dismissing it under Section 203 CrPC. The revisional court and High Court (under Section 482 CrPC) cannot reappreciate evidence merely because another view is possible. Interference under inherent jurisdiction is warranted only when findings are perverse or illegal; not when the trial court has taken a plausible view based on material on record. Where the trial court, after proper consideration, finds that no prima facie case is made out, dismissal of complaint is valid and does not call for interference. Since the findings of the trial court were not perverse and were based on evaluation of evidence, no interference was warranted, and the application was dismissed. CASE LAW CITED M/s Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & Ors. (1998 SC 128) (Delivered by Hon'ble Pramod Kumar Srivastava, J.) 1. Heard learned counsel for the applicant, learned AGA and perused the records. 2. The complaint case no. 336 of 2015 (Dwarika Prasad Vs. Sukharm and others) was filed for prosecution of opposite parties under Section 147, 148, 149, 452, 354, 323, 504 and 506 IPC for alleged maltreatment and molestation of wife of complainant by eight