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Navin S. Rupani v. State Of U.P. & Another - APPLICATION U/s 482 No. 16895 of 2005  RD-AH 6818 (2 December 2005)
Hon'ble M. K. Mittal, J.
Heard Sri R. C. Yadav, learned counsel for the accused applicant, learned A.G.A. and perused the record.
Application under Section 482 Cr.P.C. has been filed to quash the complaint dated 29.11.2004 under Section 138 N.I.Act, P.S. Dashashwamedh, District Varanasi (Case No. 10046 of 2005) presently pending in the Court of C.J.M. Varanasi.
The contention of the leaned counsel for the accused applicant is that there was no transaction between the applicant and the opposite party no. 2 but he has filed complaint with wrong allegation. According to him the applicant was not under any legal obligation to pay any legal debt as there was no legal liability upon him. Opposite party no. 2, a private money lender. Manish Rupani had taken some money from him and there was a dispute regarding charging of interest. A panchayat was held and it was decided by the Secretary of the Vyapar Mandal that Manish Rupani would pay Rs. 80,000/- to Satpal Singh as total amount. Manish Rupani was short of funds and the accused applicant being well wisher agreed to stand as surety and gave six cheques for Rs. 70,000/- and Rs. 10,000/ were given in cash. It was also agreed that as soon as Manish Rupani would pay the money to Satpal Singh all the six cheques would be returned. In these cheques the applicant had not mentioned the date and also had not filled the column to whom the cheques were payable. This was done in the year 2003.
Learned counsel for the accused applicant has further contended that Manish Rupani paid the entire money to Satpal Singh and demanded back the cheques but he did not return and threatened him. Manish Rupani informed the Police and also informed the bank for stop payment against the cheques. Opposite party no. 2 in order to harm and harass the applicant filled the cheques and sent them to bank which were returned with the endorsement "stop payment". Thereafter opposite party no. 2 gave the notice dated 28.10.2004 and the applicant received the notice on 8.11.2004 and gave reply on 22.11.2004 but the opposite party no. 2 filed a complaint on 29.11.2004 and the learned Magistrate has erred in summoning the applicant.
Perusal of the complaint shows that the applicant had issued cheque no. 263713 dated 14.10.2004 for Rs. 12,000/- and Cheque No. 263714 dated 19.10.2004 for Rs. 12,000/- which were presented by him in the bank but were dishonoured on 16.10.2004 and 26.10.2004. Thereafter he gave a notice dated 28.10.2004 which was send on the accused but he gave a wrong reply. When the amount was not paid, he filed a complaint dated 29.11.2004. He also filed his affidavit along with complaint and the learned Magistrate directed to summon the accused.
Contention of the learned counsel for the accused applicant that the blank cheque had been given to Satpal and that there was no legal liability or obligation of the applicant and that entire payment was made by Manish, are all matters of fact and can be seen in the Trial Court. In the case of K. N. Beena Vs. Muniyappan and others 2001 Cr.L.J. 4745, Hon'ble Apex Court has held that the burden to prove that cheque had not been issued for any debt or liability is on the accused. He has to prove it in the Trial Court by leading cogent evidence that there was no debt or liability. In the affidavit the applicant has not disclosed the numbers of cheque that were given to Satpal Singh. This is material.
In the circumstances, I do not find any illegality in the complaint and the summoning order and the application under Section 482 Cr.P.C. is misconceived and is liable to be dismissed and is hereby dismissed.
Copy of this order be sent to learned Trial Court within a week.
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