The Allahabad High Court while dismissing an application observed that criminal proceedings cannot be quashed on the basis of a lost cheque book.
A Single Bench of Justice Anish Kumar Gupta passed this order while hearing an application filed by Smt Pragati Kapoor.
The application under Section 482 Cr.P.C has been filed seeking quashing of the summoning order dated 07.02.2023 as well as entire proceedings of Complaint Case under Section 138 of Negotiable Instruments Act (N.I Act), 1881, P.S- Sahibabad, District-Ghaziabad.
Counsel for the applicant relying upon an intimation given to the SHO, P.S-Civil Lines, District-Moradabad submitted that a cheque book of account was lost by the applicant on 02.07.2022 for which a G.D entry was made.
He further submitted that the cheque in question is a lost cheque, which has been misutilized by the opposite party no 2 and the complaint case has been filed. Therefore, counsel for the applicant seeks quashing of the entire proceedings of the case.
Per contra, A.G.A for the State submitted that the said GD entry, copy of which has been annexed to the supplementary affidavit, there is no mention of any cheque number only general information has been given that the cheque book has been lost. Whether the cheque in question was the same cheque which was lost by the applicant cannot be deciphered from the aforesaid intimation given by the applicant to the police.
However, from the allegations made in the complaint, a prima facie case has been made out against the applicant as the signatures on the cheque are not disputed by the applicant, therefore, a presumption under Section 139 of the N.I Act shall be drawn against the applicant, therefore, merely on such averments made by counsel for the applicant, the proceedings cannot be quashed. It is for the applicant to establish that the said cheque in question was actually lost and was not issued by the applicant in discharge of any liability on his part, which can be done by the applicant before the trial court by leading cogent evidence.
Therefore, A.G.A submitted that no interference is called for in the matter while exercising jurisdiction under Section 482 Cr.P.C.
The Court observed that,
From the records of the case, it is apparent that it has been alleged in the complaint that in the month of April to June, 2021, the opposite party no 2 has advanced a sum of Rs 4,40,000/- to the applicant and when the opposite party no 2 asked for repayment of the same, the cheque in question of Rs 3,93,000/- dated 01.11.2022 was issued by the applicant. The said cheque was presented for encashment which was dishonored on 04.11.2022 with a remark “payment stopped by the drawer”. Thereupon, a legal demand notice was issued on 02.12.2022 which was not complied with by the applicant, therefore, the instant complaint case was filed by the opposite party no 2 on 23.12.2022. As per the allegations made in the complaint, a prima facie case has been made out against the applicant and the trial court has rightly summoned the applicant by order dated 07.02.2023. The Court does not find any illegality in the summoning order.
However, the contention of the counsel for the applicant that the cheque in question was lost by the applicant, is a question of fact which can be determined by the trial court on the basis of evidence led by applicant, the court said.
“The intimation dated 06.08.2022 does not refer to any specific cheque number which has been lost by the applicant, only it has been narrated that the cheque book belonging to the account has been lost by the applicant. Therefore, it cannot be deciphered from the said intimation to the police whether the impugned cheque was actually the lost cheque or the cheque in question was issued by the applicant in discharge of his liability. Therefore, the Court does not find any good reason to entertain the application,” the Court further observed while dismissing the application.