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Binita Shah Ashishbhai & Others v/s State of U.P. & Another

    Application U/S 482 No. 31893 of 2022
    Decided On, 11 November 2022
    At, High Court of Judicature at Allahabad
    By, THE HONOURABLE MR. JUSTICE RAJEEV MISRA
    For the Applicant: Hridesh Batra, Advocate. For the Opposite Parties: G.A., Dhirendra Kumar Srivastava, Advocate.


Judgment Text
1. Heard Mr. Anurag Khanna, the learned Senior Counsel assisted by Mr. Haridesh Batra, the learned Counsel for applicants and the learned AGA for State.

2. Perused the record.

3. This application under section 482 Cr.PC has been filed challenging Summoning Order dated 20.06.2022 passed by Chief Judicial Magistrate, Court No. II, Gautam Buddh Nagar in Complaint Case No. 36 of 2021 (M/s Ascent Construction Pvt. Ltd. Vs. M/s Manav Infrastructure Pvt. Ltd.), under Section 138 of Negotiable Instruments Act 1881, Police Station-Sector-20, District- Gautam Buddh Nagar now pending in the court of Chief Judicial Magistrate, Court No. II, Gautam Buddh Nagar

4. Record shows that M/s Manav Infrastructure Pvt. Ltd. (hereinafter referred to as "the company") is a Company duly incorporated under the Companies Act 1956. The Company is registered with the Registrar of Companies having its registered Office at 2 Kalyan Bhuvan, Abu Street, Ramnagar, Sabarmati, Gujrat. The company is engaged in Bululding Construction.

5. Applicant-1 is the Director of the Company. Applicant-2 is the appointed Company Secretory of the Company, whereas applicant-3 is the finance Head of the Company.

6. It transpires from the record that applicant-4 i.e. M/S Manav Infrastructure Pvt. Ltd. i.e. the company invited tenders for construction of Agora City Center comprising of ( 2 Basement + Ground Floor +Superstructure) and measuring an area of 17,00,000 Sq. Ft. at a site situate at Mangal Pandy Road, Ratri Bazar, Sama Vadodra in the year 2017.

7. The bid offered by the complainant company i.e. M/s Ascent Construction Private Ltd. was accepted. After due deliberation, the parties aggreed to enter into a contract. Accordingly, the tendered document (contract) was executed on 25.8.2017.

8. However, subsequently dispute arose between the parties. Ultimately, the contract was terminated vide notice dated 18.05.2021.

9. In spite of the fact that the contract stood terminated, three cheques dated 17.05.2021 valued at Rs.6,39,458/- dated-31.05.2021 valued at Rs. 6,39,858/- and dated 19.05.2021 valued at Rs.6,39,858/- were issued under the signatures of applicant-1 in favour of complainant/opposite party-2.

10. Subsequent to above, a letter dated 17.05.2021 was issued by applicant-1- Binita Shah Ashishbhai to the Branch Manager, Alkapuri Branch of HDFC Bank requesting therein that payment of aforementioned cheques be stopped.

11. It is the case of applicants- that subsequently, an email dated 18.05.2021 was also sent by applicant-3 Mr. Milan Ratnani to complainant/opposite party-2 and his Bank with the request that aforesaid cheques be not encashed on account of the request for stop payment by applicants- 1 and 3.

12. In view of above, the disputed cheques were not encashed on account of above i.e. the request for stop payment made by drawer. Accordingly, Return Memo dated 31.05.2021 was issued by the concerned Bank with the remark that cheque not encashed on account of stop payment.

13. As the disputed cheques were not enchashed, the complainant/opposite party-2 sent a legal notice dated 16.06.2021 through his counsel to the applicants.

14. Aforesaid notice was replied by applicants through their counsel by means of a counter notice dated 24.06.2021. However, inspite of above, the amount payable under the disputed cheque were not paid.

15. Ultimately after expiry of the statutory period, the complainant/opposite party-2 filed a complaint dated 04.08.2021 in the Court of Chief Judicial Magistrate, Court No. 11, Gautam Buddh Nagar. After undertking the necessary exercise, Court below summoned the applicants vide summoning order dated 20.06.2022.

16. Thus feeling aggrieved by the Summoning Order dated 22.06.2022 as well as entire proceedings of aforementioned complaint case, applicants have now approached this court by means present application under Section 482 Cr.P.C.

17. Mr. Anurag Khanna, the learned Senior Counsel for applicants, in support of this application submits that impugned summoning order passed by court below is manifestly illegal and in-excess of jurisdiction inasmuch as court below has summoned the applicant without undertaking the necessary exercise as contemplated under Section 202 (1) Cr.P.C.

18. According to learned Senior Counsel, though the proceedings impugned in present application pertain to a case under Section 138 N. I. Act and therefore, the trial of the same is summary in nature but by virtue of the law laid down by the Constitution Bench in Re: Expeditious Trial of Cases Under Section 138 N. I. Act 1881, Suo Motu Writ Petition (Cr.) No.2 of 2020 Decided on April 16, 2021, Court below was duty bound to undertake an enquiry in terms of Section 202 (1) Cr.P.C.

19. Reliance is placed upon conclusion nos.2 and 3 recorded in aforementioned order. The said conclusions read as under:-

" 2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court .

3) For the conduct of induiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses."

20. In the light of above, the learned Senior Counsel invited the attention of the Court to the complaint filed by complainant/opposite party-2, copy of which is on record as annexure-11 to the affidavit. On the basis of above, he submits that admittedly, the applicants are residing outside the territorial jurisdiction of court below. As such, court below was duty bound to conduct an enquiry as contemplated under Section 202 (1) Cr.P.C.

21. On the aforesaid premise, learned Senior Counsel submits that from the perusal of impugned order, it is explicitly apparent that no such exercise as contemplated under Section 202(1) Cr.P.C. was undertaken by court below. It is thus urged that since court below failed to comply with the mandatory provisions of Section 202(1) Cr.P.C., as was necessarily required to be undertaken by virtue of judgement and order dated 16.2.2021, passed by the Constitution Bench which has already been referred to above, the impugned summoning order cannot be sustained. It is thus urged that the impugned order is manifestly illegal and therefore, liable to be quashed by this Court.

22. It is next contended by learned Senior Counsel that the impugned summoning order is a non-speaking order inasmuch as no reasons have been assigned in the same, in support of the conclusion so drawn i.e. the summoning of applicants. Court below has simply narrated the fact in a nutshell and has thereafter, referred to the statements of the complainant and his witnesses as recorded under Sections 200/202 Cr.P.C. The conclusion drawn by the court below for summoning the applicant is a bald conclusion inasmuch as no prima-facie satisfaction was recorded by court below with regard to the veracity of the allegations made in the complaint. To buttress his submission learned Senior Counsel has referred to the following judgements of Apex Court:

I. M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, (1988) 5 SCC 749

III. GHCL Employees Stock Option Trust Vs. India Infoline Ltd. 2013 (4) SCC 505.

IV. Hariram Verma and 4 others Vs. State of U.P. and another, 2017 (99) ALL. 104.

V. Nupur Talwar v. Central Bureau of Investigation and another (2012) 11 SCC 465.

23. The judgement of the Supreme Court in Dr. Nupur Talwar(Supra) is sought to be distinguished on the ground that the observations made by the Court in aforesaid judgement have to be read with reference to the facts of that case in asmsuch as the proceedings in aforementioned case arose out of a police challan case. The case in hand is a complaint case and the cognizance was taken by the Magistrate on a complaint after recording his prima-facie satisfaction. As such, the ratio laid down in aforementioned case is not applicable to the present case and is therefore clearly distinguishable.

24. According to learned Senior Counsel, the disputed cheques are dated 17.05.2021, 19.05.2021 and 31.05.2021. Howeve, on 17.05.2021, itself a letter was issued by applicant-1, Mrs. Binita Shah Asishbhai-Director of the Company to their Bank requesting therein that aforesaid cheques be not encashed on account of stop-payment requested by drawer as well as the e-mail dated 18.5.2021 sent by applicant-3. Referring to the provisions of Section 138 N. I. Act, he submits that stop-payment is not a circumstance contemplated under Section 138(1) N.I. Act and therefore, no offence under Section 138 N.I.Act was committed by applicants by requesting stop payment with their banker after issuance of the disputed cheques.

25. He has then referred to the document appended as annexure-8 to the affidavit, which is the Bank Statement and paragraphs 17, 18 and 19 of the affidavit filed in support of the present application. It is thus contended that since sufficient balance was available in the Bank account of applicants, no offence under section 138 N.I. Act can be said to have been committed by applicants.

26. It is lastly contended by learned Senior Counsel that court below has not adverted to the mandatory provisions of Section 141 N. I. Act. Referring to the impugned summoning order, learned Senior Counsel submits that no prima-facie finding has been recorded by court below in the order impunged that since present proceedings under Section 138 N. I. Act have been initiated against a Company and applicants-1, 2 and 3 are incharge of day to day functions of the Company, therefore, they are liable. It is further submitted by learned Senior Counsel that the disputed cheques were not issued by applicants-1, 2 and 3 nor they are responsible for day to day functions of the Company. Attention of the Court was invited to paragraphs 25, 26 and 33 of the affidavit filed in support of the present application.

27. To lend legal support this his submission he has placed reliance upon the following judgements of the Supreme Court:

a. S.M.S. Pharmaceutical Ltd. Vs. Neeta Bhalla and another (2005) 8 SCC 893.

b. Pooja Ravinder Devidasani Vs. State of Maharashtra and another (2014) 16 SCC 1.

c. Sabitha Ramamurthy Vs. R.B.S. Channabasavaradhya [Sabitha Ramamurthy Vs. R.B.S. Channabasavaradhya, (2006) 10 SCC 581.

d. Central Bank of India Vs. Asian Global Limited and others (2010) 11 SCC 203.

e. Dilip Hariramani Vs. bank of Baroda (2022) SCC Online SC 579

28. On the cumulative strength of aforesaid submission, learned Senior Counsel vehemently submits that not only the impugned summoning order dated 20.06.2022 passed by court below (Annexure 14 to the affidavit) but the entire proceedings of the aforementioned complaint case giving rise to present application under Section 482 Cr.P.C. are liable to be quashed by this Court.

29. Per contra, the learned A.G.A. has opposed the present application. He submits that since the trial of the criminal case giving rise to present application is to be by way of summary trial, therefore, the procedure prescribed under Sections 200/202 Cr.P.C. are not attracted in the present case. He has then referred to Section 143 of the Negotiable Instruments Act and on the basis thereof, he contends that the trial of a case arising out of disonour of cheque is basically a summary trial but can be converted into summons trial, if in the opinion of the Magistrate, the sentence proposed to be passed is for a period beyond one year. There is nothing on record to demonstrate that court below intended to proceed with the complaint as a summary trial case. It is thus contended by learned A.G.A. that the statements of the complainant and his witnesses recorded under Sections 200/202 Cr.P.C. shall be read as the statements of the complainant and prosecution witnesses but that by itself, does not necessarily change the nature of the case from summary trial to summons trial. With regard to the observations made by Five Judges' Bench of Apex Court in Re Expeditious Trial of Cases (Supra), he submits that Apex Court has itself concluded in conclusion nos. 2 and 3 of the conclusions recorded in aforesaid report, that equiry contemplated under Sections 200/202 Cr.P.C. can be restricted to examination of documents on record. It is thus urged that holding of an enquiry in terms of Section 202(1) Cr.P.C. even in a summary trial case where the accused reside outside the territorial jurisdiction of the Court is not a ritual necessarily required to be performed. Court below has examined the complainant and his witnesses under Sections 200/202 Cr.P.C. for recording its prima-facie satisfaction regardingh the veracity of the allegations made in the complaint. Thus it cannot be said that no enquiry was undertaken by court below before issuing the process against the applicants. As such, the order impugned in present application cannot be said to be illegal or bad in law on the aforesaid grounds.

30. According to the learned A.G.A., the court at the time of taking cognizance as well as summoning of an accused has to only record it's prima-facie satisfaction. Court is not required to undertake a detailed enquiry as a mini trial and return a finding that in view of the evidence on record, prima-facie conviction of accused is possible.

31. According to the learned A.G.A., there is plethora of judgements with regard to the manner in which summoning order should be passed. However, he has restricted his reliance upon two judgements of the Supreme Court i.e. Nupur Talwar v. Central Bureau of Investigation and another (2012) 11 SCC 465 and State of Gujarat Vs. Afroz Mohammed Hasanfatta, A.I.R. 2019 Supreme Court 2499

32. He has relied upon paragraph 37 of the judgement in Dr. Nupur Talwar Vs. C.B.I. And another, (2012) 11 SCC 465 which s relevant for the issue in hand. Accordingly, same is extracted herein-under:

" 37. The criterion which needs to be kept in mind by a Magistrate issuing process, have been repeatedly delineated by this Court. I shall therefore, first examine the declared position of law on the subject. Reference in this behalf may be made to the decision rendered by this Court inCahndra Deo vs. Prokash Chandra Bose alias Chabi Bose and Anr., AIR 1963 SC 1430, wherein it was observed as under

"(8) Coming to the second ground, we have no hesitation is holding that the test propounded by the learned single judge of the High Court is wholly wrong. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry under Section 202 has been considered. Amongst those decisions are :Parmanand Brahmachari v. Emperor, AIR 1930 Pat 20; Radha Kishun Sao v. S.K. Misra, AIR 1949 Pat 36; Ramkisto Sahu v. State of Bihar, AIR 1952 Pat 125; Emperor v. J.A. Finan, AIR 1931 Bom 524 andBaidya Nath Singh v. Muspratt, ILR 14 Cal 141. In all these cases, it has been held that the object of the provisions of Section 202 is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction.The learned Judges in some of these cases have been at pains to observe that an enquiry under Section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant."

33. In State of Gujarat Vs. Afroz Mohammed Hasanfatta, A.I.R. 2019 Supreme Court 2499 the court delineated its views regarding the procedure to be followed while summoning an accused in paragraph 37 of the report as follows:

"37. For issuance of process against the accused, it has to be seen only whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defences. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. [Vide Nupur Talwar v. Central Bureau of Investigation and another (2012) 11 SCC 465]"

34. On the basis of above, the learned A.G.A. contends that at the time of summoning of an accused, the court is not required to record detailed reasons but only a prima-facie satisfaction on the basis of material on record. Court is further not required to return a finding at the time of taking cognizance or summoning of an accused that as per the material on record, accused is liable to be convicted.

35. Learned A.G.A. has then referred to the impugned summoning order and on basis thereof, he submits that court below has recorded its prima-facie satisfaction with regard to the allegations made in the complaint on the basis of the statements of the complainant and his witnesses examined under Sections 200/202 Cr.P.C. as well as the papers accompanying the complaint. As such court below has not examined its jurisdiction in a "casual and caviliar manner but deligently". It is not the case of applicant that no offence as complained of is made out against applicants as per the allegations made in the complaint or the statements of the witnesses examined by Court below. As such, the impugned summoning order cannot be said to be illegal or in-excess of jurisdiction on that score.

36. With regard to the issue that no offence under Section 138 N. I. Act is made out against applicants as there was a request by applicant-1 with the bank for stop-payment of the disputed cheques, learned A.G.A. submits that it is true that stop-payment is not a circumstance contemplated under Section 138 N. I. Act. The factual submission that there were sufficient funds in the Bank Account of applicant-4 is subject to evidence, which may be adduced by the parties at the time of trial by the parties.

37. However, according to learned A.G.A., the issue as to whether stop-payment is covered under Section 138 N. I. Act or not is no longer res-integra and stands concluded by a Three Judges' Bench of the Supreme Court in Modi Cements Ltd Vs. Kuchil Kumar Nandi, (1998) 3 SCC 249 and Laxmi Dyechem India Ltd. Vs. State of Gujrat (2012) 13 SCC 375.

38. Reliance is placed upon paragraphs 16, 18, 20 and 21 of the judgement in Modi Cements (Supra) which reads as under:

"16. We see great force in the above submission because once the cheque is issued by the drawer a presumption under Section 139 must follow and merely because the drawer issues a notice to the drawee or to the bank for stoppage of the payment it will not preclude an action under Section 138 of the Act by the drawee or the holder of a cheque in due course. The object of Chapter XVII, which is intituled as "Of Penalties in Case of Dishonour of Certain Cheques for Insufficiency of Funds in the Accounts" and contains Sections 138 to 142, is to promote the efficacy of banking operations and to ensure credibility in transacting business through cheques. It is for this reason we are of the considered view that the observations of this Court in Electronics Trade & Technology Development Corpn. Ltd. [(1996) 2 SCC 739 : 1996 SCC (Cri) 454] in para 6 to the effect "Suppose after the cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to present the same for encashment and yet the payee or holder in due course presents the cheque to the bank for payment and when it is returned on instructions, Section 138 does not get attracted", does not fit in with the object and purpose for which the above chapter has been brought on the statute-book.

18. The aforesaid propositions in both these reported judgments, in our considered view, with great respect are contrary to the spirit and object of Sections 138 and 139 of the Act. If we are to accept this proposition it will make Section 138 a dead letter, for, by giving instructions to the bank to stop payment immediately after issuing a cheque against a debt or liability the drawer can easily get rid of the penal consequences notwithstanding the fact that a deemed offence was committed. Further the following observations in para 6 in Electronics Trade & Technology Development Corpn. Ltd. [(1996) 2 SCC 739 : 1996 SCC (Cri) 454] (SCC p. 742)

"Section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induce the payee or holder in due course to act upon it. Section 138 draws presumption that one commits the offence if he issues the cheque dishonestly"

(emphasis supplied)

in our opinion, do not also lay down the law correctly.

20. On a careful reading of Section 138 of the Act, we are unable to subscribe to the view that Section 138 of the Act draws presumption of dishonesty against drawer of the cheque if he without sufficient funds to his credit in his bank account to honour the cheque issues the same and, therefore, this amounts to an offence under Section 138 of the Act. For the reasons stated hereinabove, we are unable to share the views expressed by this Court in the above two cases and we respectfully differ with the same regarding interpretation of Section 138 of the Act to the limited extent as indicated above.

21. It is needless to emphasize that the Court taking cognizance of the complaint under Section 138 of the Act is required to be satisfied as to whether a prima facie case is made out under the said provision. The drawer of the cheque undoubtedly gets an opportunity under Section 139 of the Act to rebut the presumption at the trial. It is for this reason we are of the considered opinion that the complaints of the appellant could not have been dismissed by the High Court at the threshold."

39. Reference is made to paragraph 16 of the judgement in Laxmi Dyechem India Ltd.(Supra), which is extracted herein-under:-

"16. The above line of decisions leaves no room for holding that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. We find ourselves in respectful agreement with the decision in Magma case [(1999) 4 SCC 253 : 1999 SCC (Cri) 524] that the expression "amount of money ... is insufficient" appearing in Section 138 of the Act is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer" are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the "signatures do not match" or that the "image is not found", which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act:"

40. It is thus urged by learned A.G.A. that in view of the authoritative pronouncements of the Supreme Court in aforementioned judgements, it cannot be said since stop-payment was requested by applicants and therefore, no offence under Section 138 N. I. Act is made out against applicant is wholly misconceived and therefore, liable to be rejected.

41. Learned A.G.A. has then submitted that it is the admitted case of applicants that the disputed cheques are dated 17.05.2021, 19.05.2021 and 31.05.2021. Aforesaid cheques are not signed by either of the applicants-1, 2 and 3. He has then invited the attention of Court to the averments made in paragraphs 16, 17, 18 and 19 of the affidavit filed in support of present application as well as the letter dated 17.05.2021 issued by applicant-1, Mrs. Binita Shah Ashishbhai (Annexure-5 to the affidavit) whereby a request for stop payment of disputed cheques was made. At this stage, leanred A.G.A. invited the attention of the Court to the disputed cheques, photopies of which are on record as annexure-4 to the affidavit to show that same are signed by applicant-1. On the basis of above, learned A.GA. Contends that in view of aforesaid, it cannot be deduced that applicant-1 is not responsible for day to day functioning of the Company. As such, the provisons of Section 141 N. I. Act cannot be said to have been infringed. Applicants are guilty of pleading hot and cold at the same time. With regards to applicants 2 and 3, learned A.G.A. submits that neither there is any pleading in the affidavit that applicants-2 and 3 are not involved in day to day function of the Company nor any document has been appended alongwith the affidavit showing the duties and responsibilities of applicants-1, 2 and 3. According to learned A.G.A. aforesaid plea is a plea of fact and unless the same is evidenced by document on record, the same is liable to be rejected by this Court. Reference in this regared is made to judgement of the Supreme Court in Bharat Singh Vs. State of Haryana, A.I.R. 1988 SC 2181 wherein following has been observe red in paragraph 13 of the report:

"13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit."

42. According to learned A.G.A. plea raised by applicants is a plea of fact which requires to be established before court below by leading evidence. Simply on the basis of averments made in the affidavit, the said plea cannot b

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e accepted, one way or the other by this Court. 43. It is thus streneously urged by learned A.G.A. that no question of law or fact is involved in present applicant and therefore, same is liable to be dismissed. 44. Having heard the learned senior counsel for applicants, the learned A.G.A. for State and upon perusal of material brought on record, this Court finds that none of the submissions urged by learned Senior Counsel are cogent enough to quash the impugned summoning order as well as the entire proceedings of the complaint case giving rise to present application. 45. Court further finds that the submission-1 urged by learned Senior Counsel that no enquiry was conducted by Court below in terms of section 202 (1) Cr.P.C. as per the observations made by Constitution Bench is wholly misconceived, inasmuch as perusal of impugned order clearly goes to show that the complainant and his witnesses were examined under section 200/202 Cr.P.C. Court below further examined the documents accompanying the complaint to find out the veracity of the complaint. As such, the directions contained in conclusion numbers 2 and 3 of Constitution Bench judgement referred to above were duly complied with by Court below. 46. The second submission urged by learned Senior Counsel that impugned summoning order is a non-speaking order as it does not contain any reason is also misconceived in view of the judgements of Supreme Court in Doctor Nupur Talwar (Supra) and Mohammad Afroz Hasanfatta (Supra). 47. The third submission urged by learned Senior Counsel that no offence under section 138 N.I. Act is made out on account of stop payment of disputed cheque requested by the drawer is without merit in view of the three judges Bench judgement of Supreme Court in Modi Cements (Supra) followed in Laxmi Dycem. 48. With regard to the last submission urged by learned Senior Counsel, the Court finds that neither there is pleading with regard to the duties and responsibilities of the officers of the Company nor the duties and responsibilities of applicants 1, 2 and 3 have been elaborated so as to establish that they are not involved in day to day affairs of the Company. Moreover, aforesaid plea is a factual plea and cannot be decided simply on the basis of averments made in the affidavit. It is however established from the record that applicant-1 had signed the disputed cheque and had also requested for stop payment. Applicant-3 sent an e-mail to the complaint regarding stop payment 49. This Court in exercise of its jurisdiction under section 482 Cr.P.C. cannot appraise or appreciate evidence, as such an exercise can be undertaken only by trial court upon trial of above mentioned case. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.)283. 50. In view of above, present application fails and is liable to be dismissed. 51. It is accordingly dismissed.
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