Neutral Citation No. - 2025:AHC:89669 Court No. - 87 Case :- APPLICATION U/S 482 No. - 35814 of 2017 Applicant :- Radhey Shyam Katiyar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Bijai Prakash Tiwari Counsel for Opposite Party :- G.A.,Pawan Kumar Rao Hon'ble Prashant Kumar,J. 1. Heard Sri Bijai Prakash Tiwari, learned counsel for the applicant, Shri Pawan Kumar Rao, learned counsel for the opposite party no. 2, learned AGA for the State-opposite party and perused the record. 2. The present application under Section 482 Cr.P.C. has been filed by the applicant praying for quashing of Case No. 31294 of 2016 (State vs. Radhey Shyam Katiyar), under Section 406 and 420 I.P.C. in Police Station Naubasta, District Kanpur Nagar, pending in the court of ACMM I, Kanpur Nagar. 3. Factual aspect of matter is that on an application filed under section 156(3) Cr.P.C. on 19.11.2015, learned Magistrate ordered for lodging of F.I.R., which was lodged in Case Crime No. 966 of 2015, under section 467, 468, 471, 420 and 406 I.P.C., Police Station Naubasta, District Kanpur Nagar. After due investigation in the matter police has submitted charge- sheet on 16.06.2016 under section 420, 406 I.P.C. Since the applicant was not participating in trial, learned Magistrate issued NBW on 28.02.2017. 4. Learned counsel for the applicant submits that applicant had earlier filed a civil suit under section 106 of Transfer of Property Act against the opposite party no. 2 in the year 2016. He further submits that the F.I.R. had been lodged in counter blast to the civil proceedings initiated by the applicant. He further submits that the F.I.R. is highly belated. 5. Per contra, learned counsel for the opposite party no. 2 submits that the F.I.R. was lodged on 13.12.2015, which is much prior to the filing of the suit, it is not the case of counter-blast. Applicant instead of handing over the cheque issued in favour of opposite party no. 2, got it cancelled, as such he has committed fraud with the opposite party no. 2. He further submits that applicant had never return the money back. The contention of F.I.R. is corroborated by the evidence collected during investigation. He further submits that since the applicant had not participated in the trial therefore NBW was issued by the trial court against him. 6. Heard the submission advanced by learned counsel for the parties, perused the material brought on record, I find that applicant had not participated in the trial, therefore, learned trial court by making a judicial inquiry as provided under the Cr.P.C./ B.N.S.S., 2023 and after finding that the prima facie case is being made out, issued NBW against the applicant, I see no illegality in the order passed by the learned Magistrate in the aforementioned proceedings. The applicant will have occasion to put their point of view during trial. 7. The argument raised by the applicant are all disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court. 8. Hon'ble Supreme Court in the matter of State of Haryana Vs. Bhajan Lal 1992 Supp (1) SCC 335, M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918, R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, and lastly, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 has held that only those cases in which no prima facie case is made out can be considered in an application under Section 482 Cr.P.C. 9. The instant application does not fall under the guidelines laid down by the Hon'ble Supreme Court in the judgements mentioned above, and followed in a number of matters. Moreover, the facts as alleged cannot be said that, prima facie, no offence is made out against the applicant. It is only after the evidence and trial, it can be seen as to whether the offence, as alleged, has been committed or not. 10. However it is open for the applicant to take all its defence in the trial. 11. Hence, the instant application filed under Section 482 Cr.P.C. cannot be entertained and is, accordingly, dismissed. Order Date :- 26.5.2025 Bhanu Digitally signed by :- BHANU PRATAP KUSHWAHA High Court of Judicature at Allahabad