# Vinod Kumar Parihar v. State Of U.P. & Anr

- **Citation:** (2016) 8 ILRA 629
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-24
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-parihar-v-state-of-u-p-anr-44365
- **Pages:** 4

## Text

8 All. Vinod Kumar Parihar Vs State Of U.P. & Anr.
629
(2016) 8 ILRA 629
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.08.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Application U/S 482 No.- 22839 Of 2016

Vinod Kumar Parihar ...Applicant
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for Applicant:
Viveka Nand Rai

Counsel for Opposite Parties:
G.A.

Legislation referred to:-
Negotiable Instruments Act, 1881 - Section 138 (Dishonour of cheque)
Code of Criminal Procedure, 1973 - Sections 190, 482; Chapter XV (Cognizance of offences by
Magistrates).

FACTS :
The applicant was summoned by the court of A.C.J.M., Court No. 5, Agra, in Complaint Case No. 1300 of 2015
(Smt. Beby Upadhyay v. Vinod Kumar Parihar) for prosecution of an offence under Section 138 of the
Negotiable Instruments Act, 1881, on account of dishonour of cheque drawn on his bank account in favour of
the complainant/opposite party no. 2.
The applicant, through counsel, contended that prior to the filing of the complaint and prior to the
presentation of the cheque in question in the bank, an FIR had been lodged by the applicant with the police to
the effect that the complainant had forcibly obtained his signatures on cheques bearing nos. 641871 to
641885. It was further contended that pursuant to investigation of the said FIR, a charge-sheet was submitted
against the complainant. The applicant urged that the trial court, while passing the summoning order, had
failed to consider the contents of the reply to the statutory legal notice sent by the applicant, and that there
was no reason or liability on the part of the applicant to issue the cheques in favour of the complainant, as
they were alleged to be the result of a threat to his life.
The trial court, while passing the order of cognizance and summoning, had considered that the cheque
relating to the applicant's bank account was drawn in the name of the complainant, who had presented it in
the bank; that after dishonour, a legal notice was duly served upon the applicant; and that upon non-payment
of the cheque amount, the complaint was filed. On this prima facie satisfaction, the summoning order was
passed. The present application under Section 482 Cr.P.C. challenged the said proceedings.

Questions of Law
(i) Whether the proceedings of a complaint case under Section 138 N.I. Act are liable to be quashed under
Section 482 Cr.P.C. on the basis of a defence version - namely, that the cheques in question were obtained
by force - which is yet to be proved by adducing evidence before the trial court?
630 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) Whether the filing of a police charge-sheet against the complainant in connection with the cheques in
question is sufficient ground for quashing or interdicting the complaint proceedings under Section 138 N.I. Act
at the cognizance/summoning stage?
(iii) What is the scope and standard of scrutiny required at the stage of taking cognizance and issuing
summons under Section 138 N.I. Act, and whether non-consideration of the reply to statutory notice vitiates
the summoning order?

Held
(i) Defence version not a ground for quashing at cognizance stage: The contentions raised by the
applicant - that the cheques were obtained by force under threat to life and that there was no reason for him
to issue the cheques - are essentially in the nature of a defence version. Such contentions are required to be
raised and proved before the trial court at the appropriate stage when evidence is adduced. At the stage of
Section 482 Cr.P.C., the High Court cannot quash proceedings on the basis of a defence that is yet to be
established. No justification exists for interference in the proceedings of the trial court on the basis of an
unproved version.
(ii) Police charge-sheet against complainant not a bar to complaint proceedings: The mere fact that
a charge-sheet was submitted by the police against the complainant in connection with the cheques in
question does not constitute a valid ground for quashing the proceedings of the complaint case. The inquiry
conducted by a Judicial Magistrate himself under Chapter XV Cr.P.C. stands on a higher pedestal than an
investigation conducted by the police. The inherent jurisdiction of the High Court under Section 482 Cr.P.C.
cannot be exercised to quash proceedings of the trial court solely on the basis of a police report, the facts of
which are yet to be proved.
(iii) Sufficiency of material for cognizance and summoning: At the stage of taking cognizance and
issuing summons under Section 138 N.I. Act, the trial court is required to examine only whether a prima facie
case is made out. In the present case, the trial court had duly considered that: (a) the dishonoured cheque
was drawn on the applicant's bank account in favour of the complainant; (b) the cheque was presented in the
bank and dishonoured; (c) a statutory legal notice was duly served upon the applicant; and (d) the cheque
amount was not paid within the prescribed period, leading to the filing of the complaint. These facts were
sufficient to constitute a prima facie case for the purpose of cognizance and summoning. The trial court
proceedings were found to have been carried out following the procedure and law, without any illegality or
infirmity.

Result: No case for interference made out. Application under Section 482 Cr.P.C. dismissed. Proceedings in
Complaint Case No. 1300 of 2015 before the A.C.J.M., Court No. 5, Agra, to continue in accordance with law.

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. The applicant has been summoned for prosecution of offence under section 138 N.I. Act
in complaint case no. 1300 of 2015 (Smt. Beby Upadhyay Vs. Vinod Kumar Parihar) by the court
of ACJM, Court No. 5, Agra. The proceeding of this complaint case has been challenged in present
application. Heard learned counsel for the applicant, learned AGA and perused the records.

2. Learned counsel for the applicant contended that before filing of the complaint case and
before the presentation of cheque in question in bank, the FIR was lodged in police that
complainant had forcibly obtained the signatures of applicant on cheques no. 641871 to 641885.
His contention is that on the basis of said police report, matter was investigated and charge-sheet
was submitted against the complainant. In spite of it, trial court had summoned the applicant only
on the ground of dishonour of cheque and service of legal notice, without considering the contents
8 All. Vinod Kumar Parihar Vs State Of U.P. & Anr.
631
of reply of notice by the applicant. Learned counsel for the applicant also contended that there was
no reason for applicant to issue cheques in favour of complainant and that there is no reason for
prosecution of applicant for dishonour of those cheques, which were result of threat of life to
applicant.

3. In present matter, at the time of passing the order of cognizance and summoning, the trial
court has considered that cheque relating to bank account of applicant was drawn in the name of
complainant-OP No.-2, who had presented them in the bank, and after dishonour of cheque, he had
served legal notice; and when amount of cheque was not paid to him, then he had filed complaint.
These facts were prima facie established before trial court, which were sufficient for passing order
of cognizance of aforesaid offence and summoning the applicant. The arguments placed before this
Court by learned counsel for the applicants are in nature of defence version, which may be
considered by trial court at appropriate stage, when evidences in that regard are adduced and facts
are proved. At this stage, on the basis of defence version, which are still to be proved, there is no
justification for quashing the proceedings of trial court or making any interference in it.

4. This contention of learned counsel for the applicant is unacceptable that since police had
submitted charge-sheet against the complaint regarding cheques in question, therefore proceeding
of complaint case should not be carried out. The enquiry made by trial court of Judicial Magistrate
himself under Chapter XV CrPC is on higher pedestal than that of investigation made by police.
Therefore the inherent jurisdiction of this Court cannot be exercised for quashing the proceedings
of trial court, on the basis of any police report, the facts of which are yet to be proved.

5. In view of the above and after consideration of record, it is found that proceedings of
trial court are being carried out after following procedure and law without any illegality or
infirmity. There is no reason to interfere in said proceedings. Therefore, this application is
dismissed.
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632 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 632
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.08.2016

BEFORE

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Application U/S 482 No.- 24718 Of 2016
&
Application U/S 482 No.- 24719 Of 2016

Ankush Jain ...Applicant
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for Applicant:
Amit Daga

Counsel for Opposite Parties:
G.A.

Legislation referred to : Negotiable Instruments Act, 1881 - Ss. 138, 142, 142(2)(a) & (b), 142-A, 145;
Code of Criminal Procedure, 1973 - Ss. 200, 406, 482.

FACTS :
The complainant-company (O.P. No. 2), a Private Limited Company registered under the Companies Act,
alleged that during the course of business transactions since 2011, the accused-applicant issued two cheques
bearing Nos. 000010 and 000011, each dated 31.12.2014 and each for Rs. 35 lakhs, drawn on Bank of
Baroda, Shalimar Garden Branch, Ghaziabad, in favour of the complainant-company. Both cheques were
deposited by the complainant-company in its account maintained with Punjab and Sindh Bank, Narayana, New
Delhi, and were returned dishonoured with the endorsement „xceeds arrangement" vide Bank Memo dated
1.1.2015.

Statutory notices under Section 138 N.I. Act were served upon the applicant on 13.1.2015. The applicant,
instead of making payment, replied by letter dated 22.1.2015 denying liability. Thereupon, complaints under
Section 138 N.I. Act were filed before the Judicial Magistrate, Ghaziabad, supported by an affidavit of the
Director of the complainant-company filed as statement under Section 200 Cr.P.C. read with Section 145 N.I.
Act. The learned Magistrate, on the basis of the said affidavit and documents, summoned the applicant vide
order dated 25.4.2015.

The applicant filed two applications under Section 482 Cr.P.C. before this Court praying to quash both the
complaints and the summoning orders, primarily contending that by virtue of the amended Section 142(2) of
the N.I. Act (which came into force w.e.f. 15.6.2015 with retrospective effect), the Court at Ghaziabad lacked
territorial jurisdiction to entertain the complaints, since the complainant-company maintained its account at
Delhi, and therefore the proceedings at Ghaziabad constituted an abuse of the process of court.