1. Heard Sri Amit Daga, learned counsel for the applicant, Sri Sanjay Agarwal, learned counsel for the Opposite Party no. 2 and Sri G.P. Singh, learned A.G.A. for the State.
2. The present application has been filed with a prayer to quash the entire proceedings of Criminal Complaint Case No. 03 of 2014, under Section 138 of Negotiable Instruments Act, Police Station, Konch Kotwali, District Jalaun, pending in the court of learned Judicial Magistrate, Konch, Jalaun.
3. The main argument of the learned counsel for the applicant is that the complaint under Section 138 of Negotiable Instruments Act has not been filed by the person in whose favour the cheque was issued by the accused-applicant, no valid power of attorney was being possessed by the Opposite Party no. 2/complainant in this case executed on behalf of the Firm, therefore, the entire proceedings need to be quashed.
4. To appreciate the respective versions of the parties, it would be appropriate to refer here the facts of the case.
5. In brief, as per the complaint filed by the Opposite Party No. 2, Firm M/s. Suman Traders was involved in trade of food grains (Dalhan and Tilhan) and the accused was also dealing in business in the same field and both the Firms had relations with each other. The accused had purchased 211 quintal masoor at the rate of Rs. 4,000/- per quintal through Bill No. 3, dated 22.10.2013 from the Opposite Party No. 2 on which some additional payment was also to be made at the rate of 1% per quintal, hence the total amount of the said purchase came to be Rs. 8,52,440/- and through Bill No. 4, dated 23.10.2013, 211 quintals of masoor at the same rate was also purchased at the same terms & conditions, which also amounted to Rs. 8,52,440/-, thus total amount of Rs. 17,04, 880/- was due upon the accused on account of purchase of the said masoor, which was to be paid to the Opposite Party no. 2. In order to pay back the said amount, the accused paid total amount of Rs. 17,04,880/- by way of issuing two cheques of S.B.I. bearing Cheque No. 193732 amounting to Rs. 9,00,000/- and Cheque No. 193733 amounting to Rs. 8,04,880/- and this payment was made on 24.10.2013 and 25.10.2013. The said cheques were given to the Opposite Party, Firm, through the owner, Sri Durgesh Kumar Gupta S/o Radhey Shyam Gupta proprietor of the Dalal M/s. Durgesh Gupta Brokers and Consultants, Rath Road, Orai, which was deposited by the Opposite Party No. 2 in Allahabad Bank, Branch-Konch, for the purposes of its encashment but the same was returned as dishonoured as there was no sufficient amount in the account of the accused, information regarding which was transmitted by the Allahabad Bank, Branch, Konch by its letter dated 26.10.2011 to the opposite party no. 2 on 1.11.2013, therefore, the accused had deliberately issued the said cheques knowingly full well that he did not have sufficient amount in his account in order to honour those cheques. Thereafter, Opposite Party no. 2 through his counsel sent a registered notice to the accused on 26.11.2013, after receipt of which by the accused, he sent a reply of the same through his counsel on 12.12.2013, which was based on false averments. Both the cheques have been annexed at page 28 and 29 of the paper book, which appear to have been issued in favour of the Suman Traders i.e. Opposite Party no. 2. The notice sent by the counsel of Opposite Party no. 2 to the accused applicant- Sunil Kumar Aggarwal, Proprietorship Firm M/s. Sambhu Dayal Krishi Utpadan Mandi Samiti, Konch, District Jalaun, U.P., for payment of the said amount of dishonoured cheques, is also annexed at page no. 30-31 of the paper book along with receipt of the registry, which is at page no. 32 of the paper book. The reply given of the said notice from the side of the accused through his counsel is also annexed at page 33 and 34, in which the issuance of those cheques have been denied nor any purchase of masoor was admitted and it was stated that in fact the accused used to meet sometimes the opposite party no. 2 in respect of his business and, therefore, the accused used to have some blank cheques with him sometimes in order to make prompt payments. The two cheques, he had kept in his pocket, which had fallen somewhere and regarding which he had lodged an F.I.R. on 23.10.2013 at Kotwali Konch so that no person could make misuse of those cheques.
6. The trial court after having recorded the statements of the complainant-opposite party no. 2, Sri Sanjeev Kumar Srivastava, Agent/Munim of Opposite Party No. 2, under Section 200 Cr.P.C. and that of Durgesh Kumar Gupta S/o Radhey Shyam Gupta, Broker and Consultant, Rath Road, Orai, under Section 202 Cr.P.C., has summoned the accused applicant to face trial under Section 138 N.I. Act for offence under Section 138 of N.I. Act.
7. Learned counsel for the Opposite Party no. 2 has vehemently argued that he is an Agent/Munim of the Opposite Party no. 2, Firm, and was fully entitled to file this complaint against the accused applicant and has relied upon Yashpal Singh Chauhan Vs. State of U.P. and Another, 2016 Law Suit (All) 3859, A.C. Narayanan Vs. State of Maharashtra and Anr. and G. Kamalakar Vs. M/s. Surana Securities Ltd. and Anr., AIR 2014 SC 630, Application u/s 482 No. 13916 No. 13916 of 2009 (M/S. Ensemble Furniture Solutions Pvt. Ltd. & Another Vs. State of U.P. & Another) decided on 22.12.2011, Ashoke Kumar Daw And Anr. Vs. Gobinda Chandra Dev and Ors., AIR 1984 Cal 337, Varun Pahwa Vs. Renu Chaudhary, AIR 2019 SC 1186, Modern Denim Ltd. Vs. Lucas Tvs Ltd., 1999 (3) CTC 143 (Madras High Court), and Samrat Shipping Co. Pvt. Ltd. vs. Dolly George, (2002) 9 SCC 455.
8. In the affidavit, learned counsel for the applicant set up a defence that both the witnesses, namely, Sanjeev Kumar Srivastava and Durgesh Kumar Gupta, their statements were not recorded by the trial court on oath under Section 200 Cr.P.C. and 202 Cr.P.C. and thus the contents/allegations of the complaint could not be proved, therefore, the process issued under Section 204 Cr.P.C. becomes illegal. Smt. Suman Aggarwal is a sole proprietor of M/s. Suman Traders but she was not examined before the trial court as a witness nor her affidavit was filed before the trial court nor any power of attorney was issued/executed by her as sole proprietor of M/s. Suman Traders either in favour of Sanjeev Kumar Srivastava, who has filed the complaint or in favour of any other person. From the documents, which have been annexed by him, it is evident that M/s. Suman Traders is recorded in Commercial Trade Department showing Smt. Suman Agarwal as the sole proprietor of M/s. Suman Traders and a certified copy of the question-answer has been obtained by the complainant from the trial court regarding availability of any power of attorney in the name of Sanjeev Kumar Srivastava but it is clearly mentioned therein that no power of attorney in the name of Sanjeev Kumar Srivastava was available. It is further mentioned that Sri Sanjeev Kumar Srivastava is neither payee nor holder in due course nor the cheques in question were issued in his name nor was there any document on record authorizing him to file a complaint against the accused-applicant and yet this false complaint has been made by him against the applicant. The Hon'ble Apex Court in A.C.Narayana Vs. State of Maharashtra and another reported in AIR 2014 SC 630, has held that where the payee is a proprietory concerned, the complaint or offence punishable under Section 138 of N.I. Act can be filed: (i) by the proprietor of the proprietory concern, describing himself as sole proprietor of the 'payee'; (ii) the proprietory concerned, describing itself as sole proprietory concerned, represented by its sole proprietor; and (iii) the proprietor or the proprietory concerned represented by attorney holder under a power of attorney executed by the sole proprietor.
9. In view of above proposition of law, the applicant had no power to file this complaint, hence the proceedings in the present case are not sustainable in the eyes of law and need to be quashed. The present proceedings have been initiated only with the purpose of harassing the accused applicant in order to extort money from him. It is further categorically submitted that no legal debt of M/s. Suman Traders and Sri Sanjeev Kumar Srivastava is due upon the applicant or his Firm but since the applicant's Firm was doing business with M/s. Suman Traders and some cheques were issued by applicant as proprietor of his Firm to M/s. Suman Traders as security cheques, the same have been misused by Sri Sanjeev Kumar Srivastava claiming himself to be an Agent/Munim of M/s. Suman Traders. Further, it is categorically stated that till date M/s. Suman Traders or proprietor have never raised any demand of any legally enforceable debt from the applicant or his Firm, nor cheques in question were issued by the applicant in the name of M/s. Suman Traders in discharge of any legally enforceable debt, hence no offence under Section 138 of N.I. Act is made out against the applicant and, accordingly, the proceedings need to be quashed against the applicant.
10. In rebuttal, from the side of Opposite Party no. 2 it has been stated in counter-affidavit that the trial court has taken statement of O.P. No. 2, under Section 200 Cr.P.C. on affidavit, which is wholely legal as per the provisions under Section 145 of N.I. Act, which provides for evidence on affidavit and, accordingly, the statement of Opposite Party no. 2 as well as his witness Durgesh Kumar under Section 200 and 202 Cr.P.C. have been taken on affidavit in accordance with law. Further it is mentioned that Smt. Suman Aggarwal, who is sole proprietor of M/s. Suman Traders has executed power of attorney in favour of O.P. No. 2 vesting him with the right to make financial transactions and to represent the said proprietory concerned in any legal matters and has annexed the power of attorney issued to him by its proprietor in his favour from time to time as annexure-1, which makes it clear that Smt. Suman Aggarwal, Proprietor of Firm M/s. Suman Traders, District Jalaon has issued authorization letter in favour of Sanjeev Kumar Srivastava on 15.11.2013 in respect of presenting a complaint pertaining to two bank cheques issued by the accused, which got dishonoured.
11. After having heard both the sides and having perused the record, I find that impugned order does not suffer from any infirmity. The main argument which has been raised by the learned counsel for the applicant that the Opposite Party No. 2, Sri Sanjeev Kumar Srivastava, did not have any power of attorney on the date when the case was filed, hence he could not have filed the said complaint, hence the impugned order by which the accused applicant has been summoned gets vitiated, is not correct appreciation of law. In this regard, the position of law has been made clear from the side of learned counsel for the Opposite Party No. 2 by relying upon Samrat Shipping Co. Pvt. Vs. Dolly Geor 2002 (9) SCC 455 in which following is held in paragraph no. 3:
"3. Having heard both sides we find it difficult to support the orders challenged before us. A Company can file a complaint only through human agency. The person who presented the complaint on behalf of the Company claimed that he is the authorised representative of the company. Prima facie, the trial court should have accepted it at the time when a complaint was presented. If it is a matter of evidence when the accused disputed the authority of the said individual to present the complaint, opportunity should have been given to the complainant to prove the same, but that opportunity need be given only when the trial commences. The dismissal of the complaint at the threshold on the premise that the individual has not produced certified copy of the resolution appears to be too hasty an action. We, therefore, set aside the impugned orders and direct the trial court to proceed with the trial and dispose it off in accordance with law. Parties are directed to appear before the trial court on 31.01.2000."
12. It is apparent from the above citation that if the complainant files a complaint on behalf of a Company being authorized representative, the trial court should accept the same at the time when the complaint is presented because it is a matter of evidence when the accused disputes the authority of the said individual to present the complaint. The opportunity should be given to the complainant to prove that he was authorized to file the complaint and, therefore, at the initial stage complaint could not be dismissed on this very ground. In the present case, the applicant has clearly stated that he was looking after the business of the Opposite Party no. 2, Firm, and its Proprietor Smt. Suman Aggarwal had clearly executed authorization letter in his favour which has been cited above by him, wherein he was empowered to file the present complaint in respect of the dishonour of two cheques.
13. Reliance has been placed upon Modern Denim Ltd. Vs. Lucas Tvs Ltd. 1999 (3) CTC 143 (Madras High Court). In this case, one of the major ground of challenge was that the complaint was filed by one Mr. K.G. Sampat, Manager-Finance of the complainant-Company on 24.07.1997 and the said person had no authorization from the complainant-Company to sign or file criminal complaint on behalf of said Company. The said objection has been dealt with by the court in para no. 8 of the judgment as follows:
"8. Both these complaints were filed on 24.9.1997, whereas the resolution was passed authorising Mr.K.G. Sampath - Manager- Finance to sign the complaint, execute vakalat, engage Advocate and give evidence in the matter of prosecution against Modern Denim Ltd. and its Directors, was given only on 17.11.1997, after filing of complaint and therefore the complaint filed by Sampath is not in accordance with law.
The respondent has relied on a decision of the Supreme Court in All India Reporter Ltd v. Ramchandra, , wherein it was held at page 295-
"Order 6, Rule 14, provides that in certain circumstances a pleading may be signed by any person duly authorised by the plaintiff to sign the plaint or to sue on his behalf. The expression "signed by any person duly authorised by him to sign the same" in rule 14 need not be restricted to written authorisations. If the authorisation is proved, even an oral authorization should be taken as sufficient and there is no reason to read Orders 6, rule 14 as requiring written authorization or a power of attorney."
Though the said decision is based on Order 6, Rule 14 C.P.C., there is no distinction between the Civil and Criminal laws as far as authorisation or power of attorney is concerned. Authorisation and power of Attorney are basically civil matters which are at times adopted in Criminal proceedings. As the present case is under section 138, Negotiable Instruments Act, the authorisation given by the complainant in favour of K.G. Sampath cannot be thrown out on the ground that there was no authorisation in his favour prior to the filing of the complaint.
In Gopalakrishna Trading Co v. Baskaran, 1994 (1) 80 Com. Cases 53 it was held:
"A company is a legal entity and has to be represented by some human agency in preferring a complaint before the court. There is no express or explicit provision in the Act as to the manner in which the company is to be represented in preferring a complaint before the court for violation of the provisions under section 138 of the Act. The person connected with the affairs of the company in the normal run of things, who may be either its manager, partner, managing partner or director or any other person authorised by the company, can represent it during the course of legal proceedings before the court."
This view was further followed by this Court in Salar Solvent Extractions Ltd v. South India Viscose Ltd. 1995 (1) Com. Cases 540.
In view of these decisions, the arguments advanced on the side of the petitioners herein that K.G. Sampath has no proper authorisation to sign the complaint and to represent the complainant, do not attract our consideration."
14. In view of the above, it is clear that authorization and power of attorney are basically civil matters which are at times adopted in criminal proceedings. In proceedings under Section 138 of N.I. Act, authorization given by the complainant in favour of K.G. Sampat could not be thrown out only on the ground that there was no authorization in his favour prior to filing of the complaint and it was finally held that no proper authorization being held by K.G. Sampat to sign the complaint was not held to be a disqualification to file a complaint because the person connected with the affairs of the Company in normal run of things, who may either be its manager, partner, managing partner, director or any other person authorized by the Company can represent it during course of the legal proceedings.
15. In view of the above position of law, the arguments of the learned counsel for the applicant that the court below did not ensure that at the time of filing the complaint by Sri Sanjeev Kumar Srivastava, he did not have power of attorney, was not seen and accordingly, the complaint was out rightly not rejected is a lacuna in the present case does not appear to be correct argument. Moreover, in this case, I find that Sri Sanjay Kumar Srivastava had power of attorney holder on the said date but merely not producing it at the time of filing of the complaint would not disqualify him from filing the said complaint and on this sole ground, the same complaint cannot be treated to have been vitiated.
16. He has further placed reliance upon M.M.T.C. Ltd. v. Medchl Chemicals and Pharma (P) Ltd., (2002) 1 SCC 234. It is held in this case that even presuming that initially there was no authority, still the Company can at any stage rectify that defect. At the subsequent stage, the Company can send a person who is competent to represent the Company, the complaint could not have been quashed on this ground.
17. He has further placed reliance upon Varun Pahwa V. Renu Chaudhary AIR 2019 SC 1186 Civil Appeal No. 2431 of 2019 arising out of S.L.P. No. (C) 2792 of 2019 Supreme Court decided on 01.03.2019. In this case, the defendant had raised one preliminary objection that the suit had not been filed by the plaintiff and even the alleged authorized representative had not filed any document showing that he had been authorized by the plaintiff. The special power of attorney was neither valid nor admissible. The said point was taken up for consideration in para 4 & 10 of the judgment and following is held:
"4. The defendant raised one of the preliminary objections in the written statement that suit has not been filed by the Plaintiff and even the alleged authorised representative has not filed any document showing that he has been authorised by the above-named Plaintiff. The Special Power of Attorney is neither valid nor admissible.
10. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another, this Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:
"17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are:
(i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance;
(ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
(iii) where the non-compliance or violation is proved to be deliberate or mischievous;
(iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court;
(v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant."
18. It is apparent from the above citation that the procedural defects and irregularities which are curable should not be allowed to defeat substantive rights of the parties. This position of law should be applicable in the present case also because the proceedings under Negotiable Instruments Act are also of semi-civil nature, hence, if there is any procedural error found, the same should not be allowed to defeat the right of the Opposite Party No. 2 in the present case.
19. He has further placed reliance upon Ashoke Kumar Daw and anr. Vs. Gobinda Chandra Dev and others, AIR 1984 Cal 337.
"17. On the basis of the pleadings and submissions as made, the points for consideration would be what were. Mr. p. N. Mukheriee. the learned Advocate for the appellants, power under the power of Attorney as filed, if under such power he had the right to have the impugned order dt. 6-5-19'83. passed on consent, what should be the effect of such consent, as given by him. in the facts of this case and the 'bona fide of the appellants in prosecuting this proceeding though the said Mr. Mukheriee, even though by giving such consent, he had acted to the detriment and preiudice of the appellants. In short, the effect of continuance of representation in this proceeding through the said Mr. Mukheriee by the appellants after realisation and disclosure of such fact, that he had not acted for their benefit, and when such act or action of the said Mr. Mukheriee has created prejudice for them in the pending proceeding. It must also be noted that during the course of hearing before us, it transpired that Mr. P. N. Mukheriee the learned Advocate on record of the appellants had not filed his power of attorney and on such, a further point for consideration arose as to whether, because of such admitted non-filing of the power, the present application and all the orders obtained earlier or as passed by the Court, became null and void or such non-filing of the power was a mere irregularity, which could be cured.
18. Mr. Mullick claimed and contended that such initiation of the present proceeding or obtaining the orders earlier would not make the proceedings null and void and at best the initiation or obtaining orders thereon would be an irregularity, which could be cured and more particularly when the action as taken by the said Mr. P. N. Mukheriee is being ratified now by filing a fresh power of Attorney. He. in fact, filed a fresh power of Attorney and asked for the necessary leave of this Court to accept the same.
20. The submissions on irregularity of a proceedings by not filing the power of attorney in time, which were advanced by Mr. Mullick. were also accepted by Mr. Chatterjee. who has appeared in person. Mr. Jayanta Mitter, who appeared for the other answering Respondents, did not also contend otherwise. Such being the position and considering the determinations as indicated hereinbefore, we are also of the view that the non-filing of the power of attorney in this case, was a mere irregularity and a curable one and as such we have allowed the necessary power by Mr. P. N. Mukheriee to be filed on behalf "of the appellants. We have also allowed Mr. Chatterjee. appearing in person, to to have his power of attorney filled, as he had also failed to file the same earlier. The other Respondents have filed their power of attorney duly and in time Such being the position, we feel that the defect which had crept in the proceeding has been cured retrospectively".
20. Attention is drawn towars para 17, 18 and 20 of this judgment in which it is mentioned that further point for cancellation has arisen as to whether because of admitted non-filing of power, the present application and all the orders obtained earlier are passed by this court became null and void or such non-filing of power was a mere irregularity which could be cured and it was held that the non-filing of the power of attorney in this case was a mere irregularity and curable one and as such the necessary power by P.N. Mukharji to be filed on behalf of appellants was allowed.
21. This ruling also seems to be related to the civil matter but again no harm would be there in adopting the said principle in the present case also which is of semi-civil nature and keeping in view the said position of law, the authorization letter was not presented by the Opposite Party No. 2 at the time of filing the complaint, that will not disqualify him from being a competent complainant in this case.
22. The reliance has also placed A. C. Narayanan Vs. State of Maharashtra & another, AIR 2014 Supreme Court 630 (Supra). Attention is drawn to para no. 24 and 26 of the said judgment which are as follows:
"24. In view of the discussion, we are of the opinion that the attorney holder cannot file a complaint in his own name as if he was the complainant, but he can initiate criminal proceedings on behalf of his principal. We also reiterate that where the payee is a proprietary concern, the complaint can be filed (i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the "payee"; (ii) the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor.
26. While holding that there is no serious conflict between the decisions in MMTC (supra) and Janki Vashdeo Bhojwani (supra), we clarify the position and answer the questions in the following manner:
(i) Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent.
(ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.
(iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.
(iv) In the light of section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act.
(v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person".
23. It is apparent from the above citation that power of attorney holder is a competent person who can file the complaint and can appear as a witness al
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so on oath. I find that in the present case, the authorization letter which has been presented from the side of Opposite Party no. 2 would qualify for not less than a power of attorney as that also authorizes the Opposite Party no. 2 to file the present complaint. 24. He has further placed reliance upon Yashpal Singh Chauhan Vs State of U.P. and Anr. 2017 High Court. In this case also the reliance has been placed on the law laid down in Hon'ble Supreme Court in A.C. Narayana's case (Supra). 25. He has further placed reliance upon Application u/s 482 No. 17039 of 2017, Chandraban Vs. State of U.P. and others decided on 25.5.2017. In Para no. 14 of which the case of MSR Leathers (Supra) Hon'ble Supreme Court decided by Hon'ble Supreme Court has been relied upon. In para 29 of the said judgment of the Hon'ble Supreme Court it was held that "it is trite that the object underlying Section 138 of the Act is to promote and inculcate faith in the efficacy of banking system and its operations giving creditability to negotiable instruments in business transactions and to create an atmosphere of faith and reliance by discouraging people from dishonouring their commitments which are implicit when they pay their dues through cheques. The provision was intended to punish those unscrupulous persons who issued cheques for discharging their liabilities without really intending to honour the promise that goes with the drawing up of such a negotiable instrument. We must add that one of the salutary principles of interpretation of statutes is to adopt an interpretation which promotes and advances the object sought to be achieved by the legislation, in preference to an interpretation which defeats such object. 26. Keeping in view the above proposition of law which has been relied upon by the learned counsel for the Opposite Party No. 2, it is crystal clear in the present case that the Opposite Party No. 2, Firm, had conferred authorization upon its agent Sri Sanjeev Kumar Srivastava to file the present complaint and pursuant to that the said complaint was filed by him and after the statement of the complainant and one of the other witnesses on affidavit, which is also permissible under law cited above, the trial court has found prima-facie case made out against the applicant. The plea taken, though not pressed during the arguments, that no such cheques were issued by him and that the said cheques had got lost which have been misused by the Opposite Party no. 2 are all factual aspect which cannot be decided in proceeding under 482 Cr.P.C. as a detailed finding would be required after considering the entire facts which the parties would be adducing before the trial court and then only conclusive finding would be recorded in this regard. At the initial stage, when the accused applicant has been merely summoned to face the trial, it would be highly prejudicial and would result in miscarriage of justice if the trial in the present case is nipped in the bud. Therefore, I am of the opinion that the present application deserves to be dismissed and is, accordingly, dismissed.