The Allahabad High Court has set aside summons issued in a case pending in the court of ACJM Moradabad on the charges of cheating and extortion.
A single-judge bench of Justice Saurabh Shyam Shamshery passed this order while hearing an application under section 482 filed by Surendra Kumar Katyal.
Sushil Kumar Tiwari, counsel for applicant, submitted that in pursuance of an oral agreement between applicant and complainant in regard to sale of property of complainant, Rs 15 lakh was handed over by applicant to complainant with a condition to execute the agreement to sale and in lieu of it, some cheques were handed over to the applicant that in case agreement could not be executed, cheques be deposited in the bank account of applicant.
Counsel further submitted that due to default of complainant, execution of oral agreement could not satisfied and, therefore, applicant has deposited cheques issued by complainant in the bank, which got dishonoured and for that he has filed a criminal case under Section 138 of NI Act in the year 2016, wherein by an order dated 29.04.2017, complainant was summoned.
Counsel also submitted that after a period of five years, complainant in order to create a defence, filed a complaint case against applicant, alleging that she lost her cheques in 2016 which was found by applicant and he misused it with a further allegation that on 11.05.2023, applicant has extended threats and demanded Rs 50 lakh to avoid further litigation.
Counsel for the applicant said that aforesaid referred statement is nothing but an attempt to create a defence. Even on the basis of the above referred statement, offence of extortion could not be made out since there is no allegation that Rs 50 lakh was handed over to applicant as well as Trial Court has summoned the applicant under Section 420 I.P.C also without considering that allegation of cheating is not made out.
Counsel further said that the complainant has not disclosed about the criminal case filed by applicant under NI Act way back in 2017 that cheques deposited by him had bounced.
In the aforesaid circumstances, the Court found merit in the argument of the counsel for the applicant that on basis of statement, since offence of extortion was not concluded that admittedly alleged demand of Rs 50 lakh was not handed over, therefore, extortion was not to be made out.
The Court further found merit in the argument of counsel for the applicant that it is not possible that complainant has no knowledge that cheques were already dishonoured since the occurrence of dishonoured took place about five years ago as well as that she was already summoned under Section 138 of NI Act way back in 2017. The cheques were dishonoured due to insufficient amounts and not for disputed signatures, therefore, the allegation of cheating is also not made out.
In the aforesaid circumstances, the Court noted the complainant has not come up with clean hands before the Trial Court.
“The outcome of above discussion is that order does not survive and accordingly the order dated 24.07.2023 passed in Complaint Case under Sections 420, 384 I.P.C, Police Station- Nagphani, District- Moradabad pending in the Court of the Additional Chief Judicial Magistrate, Moradabad is set side,” the Court ordered.