Triloki Kumar Keshari vs. State Of U.P. And Another
Original PDF →Facts
The applicant, Triloki Kumar Keshari, filed an application under Section 482 Cr.P.C. seeking to quash a summoning order dated April 6, 2023, issued by the Judicial Magistrate in Complaint Case No. 445 of 2023. The complaint was filed under Section 138 of the Negotiable Instruments Act. The applicant contended that the cheque in question was issued by Maa Parwati Traders, a proprietorship firm where his brother, Ganesh Prasad Kesari, is the proprietor, as evidenced by a GST Registration Certificate. The applicant further argued that the bank account associated with the cheque had been closed since July 16, 2019, and that he had no personal connection to the transaction between the firm and the complainant. The State argued that at the summoning stage, the Magistrate only needs to ascertain if the complaint material prima facie constitutes an offense under Section 138 NI Act.
Held
The Court held that the applicant's contention that he was not personally liable for the cheque issuance was a defense that needed to be raised and adjudicated during the trial. The Court noted that the applicant had described himself as the proprietor of Maa Parvati Traders in the cheque itself. The summoning order was based on the cheque, the dishonor memo, the legal notice, and the averments in the complaint, which prima facie constituted an offense under Section 138 of the Negotiable Instruments Act. The Court found no reason to interfere with the summoning order at the Section 482 Cr.P.C. stage, stating that any defenses available to the applicant could be raised during the trial. The Court did not expressly leave any issue undecided.
Key Issues
1. Whether the summoning order dated April 6, 2023, passed by the Judicial Magistrate in Complaint Case No. 445 of 2023, under Section 138 of the Negotiable Instruments Act, is liable to be quashed on the grounds that the applicant was not the drawer of the cheque and had no connection with the transaction, and that the relevant bank account was closed prior to the issuance of the cheque? (Question of mixed law and fact, turning on Section 138 of the Negotiable Instruments Act). Petitioner's Arguments: The applicant argued that the cheque was issued by a proprietorship firm (Maa Parwati Traders) and not by him personally. He submitted a GST Registration Certificate to support this claim and stated that the bank account linked to the cheque had been closed since July 16, 2019. Therefore, he contended that he had no liability and the summoning order was erroneous. Revenue's Arguments: The State argued that at the stage of issuing summons, the Magistrate is only required to examine the complaint and supporting material to determine if an offense under Section 138 NI Act is prima facie made out. The State relied on the Delhi High Court judgment in Vinod Keni & Ors. vs Technology Development Board, asserting that defenses available to the accused must be raised during the trial under Section 251 Cr.P.C., not at the Section 482 Cr.P.C. stage. The State contended that the High Court should not usurp the powers of the Metropolitan Magistrate by entertaining arguments about why the accused should not be tried.
Sections Cited
Section 138, Section 482 Cr.P.C., Section 251 Cr.P.C.
AI-generated summary — verify with the full judgment below
Neutral Citation No. - 2023:AHC:159389 Court No. - 92 Case :- APPLICATION U/S 482 No. - 20336 of 2023 Applicant :- Triloki Kumar Keshari Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ashish Kumar Gupta Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J.
Heard Sri Ashish Kumar Gupta, learned counsel for the applicant and Sri Pankaj Srivastava, learned A.G.A. for the State.
The instant application under Section 482 Cr.P.C. was filed seeking quashing of the summoning order dated 06.04.2023, passed by the Judicial Magistrate, Court No. 33, Shahjahanpur, in Complaint Case No. 445 of 2023 (Sukkhan Lal Gupta vs. Triloki Kumar Keshari) u/S 138 of N.I. Act. P.S.- Kotwali, District- Shahjahanpur, pending in the Court of Judicial Magistrate, Shahjahanpur.
Learned counsel for the applicant submits that the cheque in question was issued by Maa Parwati Traders, which is a proprietorship firm and Sri Ganesh Prasad Kesari, the brother of the applicant, herein is the proprietor of the said firm. To substantiate the aforesaid submissions, learned counsel for the applicant has drawn our attention to Annexure '4' of the applicant, which is a GST Registration Certificate. Learned counsel for the applicant further submits that the account for which the cheque was issued has already been closed since 16.07.2019. Therefore, learned counsel for the applicant submits that it was the transaction between the firm, namely Maa Parvati Traders and the opposite party no.2, and the applicant had no connection with the said transaction. Therefore, he has prayed for quashing of the summoning order as well as the Complaint Case No. 445 of 2023. 4. Learned counsel for the State submits that at the time of the summoning, the Magistrate is required to see the contents of the complaint and the material available in support of the complaint. While issuing summon against the accused persons u/S 138, the Magistrate is required to see whether from the material available before him, the offence u/S 138 is constituted or not.
Learned counsel for the State has relied upon a judgment of Delhi High Court in Vinod Keni & Ors. vs Technology Development Board, passed in Criminal Misc. Case No. 942 of 2023, Criminal Misc. Application No. 3608 of 2023 and Crime No. 3610 of 2023 (Vinod Keni & Ors. vs. Technology Development Board).
Learned counsel for the State submits that the High Court cannot use the power of Metropolitan Magistrate and entertain the accused as to why he should not be tried u/S 138 of the Negotiable Instruments Act. This plea as to why he should not be tried u/S 138 of the Negotiable Instruments is to be raised by the accused before the Court of Magistrate u/S 251of Cr.P.C. and u/S 360 (G) of Cr.P.C.
Learned counsel for the State further submits that whatever defences of the accused in the offence u/S 138 is, that has to be looked into only during the trial of the case not at the stage of instant Application u/S 482 Cr.P.C. Here only it has to be seen whether from the material available before the Magistrate, the offence u/S 138 is made out or not.
Having heard arguments of the learned counsel for the parties, this Court has carefully perused the record of the case and on the perusal of the complaint u/S 138 in Cheque No. 461381 dated 08.02.2023 issued by the applicant, describing himself as the proprietor of Maa Parvati Traders and dishonour memo issued by the Bank concerned and the legal notice issued by the opposite party no.2 and the averments made in the complaint, it is prima facie apparent that the offence u/S 138 of Negotiable Instruments constituted for the purposes of summoning the accused. Whatever defence are available to the applicant herein can be raised during the Trial.
In view thereof, this Court do not find any reason to entertain the instant application and the same is dismissed. Order Date :- 8.8.2023 Shubham Arya SHUBHAM ARYA High Court of Judicature at Allahabad
Reproduced from the public record of the Allahabad High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.