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Uma Shankar Mishra v. State Of U.P. & Another - APPLICATION U/s 482 No. - 26896 of 2007 [2007] RD-AH 17822 (14 November 2007)

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Court No.52

Criminal Misc. Application No.26896 of 2007

Uma Shankar Misra Vs. State of U.P. And others


Hon'ble Shiv Charan J.

Heard learned counsel for the applicant and learned AGA for the State and perused the impugned order dated 5.2.2000 passed by C.J.M. Budaun in Criminal Complaint No.1305 of 2006 u/s 138 NI Act, and section 142 read with 420 IPC. By the impugned order learned Magistrate summoned the applicant for the offence u/s 138 NI Act. The present application has been moved u/s 482 Cr.P.C. for quashing the order passed by C.J.M. for summoning the applicant.

Applicant's counsel argued that the financial assistance was taken by the applicant from the opp. party no.2 and as a security opp. party no.2 obtained blank signed cheques from the applicant. When no date was filled up by the applicant in the cheque and the date etc. was filled up by opp. party no.2. That the complaint was not filed within six months from the date of issuing of cheque. It is further argued that Judicial Magistrate II Budaun had no territorial jurisdiction to adjudicate the matter. Because the cheque was withdrawn at Mirzapur ,hence the court of Mirzapur District has territorial jurisdiction.

Learned A.G.A. opposed the argument of learned counsel for the applicant.

The complaint was filed by opp. Party no.2 for the offence u/s 138/139 NI Act and 142 read with 420 IPC and learned Magistrate after being satisfied on the documents and other evidence prima facie found that the offence u/s 138 NI Act is made out and summoning order was passed. At the time of summoning order the Magistrate has expected to see whether any cheque was issued and whether the same was presented before the Bank for payment and whether the same was bounced as provided in law and whether the complaint was filed by opp. Party no.2 after complying all the formalities as provided in law. It is a matter of evidence to be decided by the trial court whether the cheque was undated as security of the financial assistance taken by opp. party no.2 . It is the defence case of opp. party no.2 at the time of the passing the summoning order the Magistrate is not required to consider the defence case. The plea has been raised for territorial jurisdiction of the Court and this plea also to be decided by the trial court. The applicant is at liberty to move application before the court concerned and raised the plea of territorial jurisdiction etc. and the trial court to decide the plea. So far as regard the order of summoning of the applicant it is legal order and the application u/s 482 Cr.P.C. deserves to be dismissed.

Application u/s 482 Cr.P.C. is dismissed summarily. It is provided that the Magistrate shall consider the objection if any filed by the applicant before the court.




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