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Navin S. Rupani v. State Of U.P. & Another - APPLICATION U/s 482 No. 17080 of 2005  RD-AH 6820 (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 23.12.2004 under Section 138 N.I.Act, P.S. Dashashwamedh, District Varanasi (Case No. 5046 of 2004) presently pending in the Court of A.C.J.M. IVth 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 is friend of one Satpal Singh 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 decided 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 these cheques but he did not return and threatened him. Manish Rupani informed the Police and also informed the bank for stop payment against these cheques. Opposite party no. 2 in order to harm and harass the applicant filled the cheque and sent it to bank which was returned with the endorsement "stop payment". Thereafter opposite party no. 2 gave the notice dated 16.11.2004 and the applicant gave a reply dated 26.11.2004 but the opposite party no. 2 filed a complaint on 23.12.2004 and the learned Magistrate has erred in summoning the applicant.
Perusal of the complaint shows that the applicant had issued cheque no. 263715 dated 22.10.2004 for Rs. 12,000/- which was present by him in the bank but was dishonored on 26.10.2004. Thereafter he gave a notice on 16.11.2004 and reply was given on 26.11.2004 but when the amount was not paid he filed a complaint dated 23.12.2004. 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 paid 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 number of cheque that was 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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