N.I. Act, Bareilly, Pappu v. Jahid, under Section

Applicant :- Jahid Opposite Party :- State of U.P. and Another Counsel for Applicant :- Arvind Kumar Sahu,Praveen Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.

1. Heard Sri Vindeshwari Prasad (AoR No.A/V0331/2012) holding brief of Sri Praveen Kumar Srivastava, learned counsel for the applicant along with Sri Arvind Kumar Sahu, and Sri Indrajeet Singh Yadav, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the proceedings in criminal Complaint Case no.224 of 2018, pending in the Court of Special Judge 138 N.I. Act, Bareilly, Pappu Vs. Jahid, under Section 138 Ν.Ι. Act, Police Station Fatehgan: Pashichami, District Bareilly.

3. Learned counsel for the applicant has submitted that on 25.04.2016, a complaint under Section 138 of N.I. Act was preferred by the O.P. No.2 against the applicant with an allegation that with respect to discharge of a liability with regard to the sale of a property, the applicant herein had drawn a cheque of Rs.15,00,000/- bearing number "071153" dated 15.01.2016, which came to be dishonoured for the first time on 19.01.2016 on the premise that there was insufficient balance. Thereafter the said cheque was represented in the bank which came to be dishonoured on 04.02.2016. Thereafter, a statutory demand notice was issued on 09.03.2016 and thereafter the said cheque was again presented in the bank on 11.03.2016, which came to be dishonoured on 16.03.2016 followed by a statutory demand notice dated 26.03.2016, complaint under Section 138 of N.I. Act on 25.04.2016 and the applicant came to be summoned on 29.09.2016 under Section 138 of N.I. Act. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reasons. Firstly, once the cheque stood dishonoured on 04.02.2016, then the statutory demand notice ought to have been issued within a period of 30 days, but the same was issued on 09.03.2016 beyond 30 days. Further submission is that merely because the cheque was again presented on 11.03.2016 and it was dishonoured on 16.03.2016, the statutory demand notice came to be issued on 26.03.2016 within the time period would not be a ground to validate the infirmity which crept in once earlier the statutory demand notice was beyond the permissible period as per Section 138 and 142 of the N.I. Act. Secondly, he submits that the cheque in question was stolen and an FIR came to be lodged on 27.07.2018, being FIR no.0400 under Sections 379, 419, 420, 467, 468, 471, 504 and 506 IPC in which a final report was submitted and thereafter a protest petition was preferred and it was registered as a complaint case. He thus submits that even otherwise there is no occasion to summon the applicant.

4. Learned A.G.A. on the other hand submits that once the cheque stood drawn, then the presumption under Section 139 of N.I. Act would be there.

5. I have heard submissions so made across the Bar and perused the record carefully.

6. Apparently, as per the allegations in the complaint with respect to discharge of liability, the applicant had drawn a cheque of Rs.15,00,000/- bearing number "071153" which came to be dishonoured on 19.01.2016. Again it was presented in the bank and dishonoured on 04.02.2016, followed by a statutory demand notice dated 09.03.2016 and again the said cheque was represented on 11.03.2016, which came to be dishonoured on 16.03.2016, followed by a statutory demand notice dated 26.03.2016. As regards the contention raised by the learned counsel for the applicant that once on 04.02.2016, as per the complaint, the cheque stood dishonoured, then the statutory demand notice ought to have been issued within 30 days, but the same was issued on 09.03.2016 beyond the permissible period, thus the infirmity came to be crept in and complaint is bound to fail, is not convincible, particularly, when the cheque can be presented and represented for umpteen number of times post dishonour, but the condition would be that the same should be within the maturity period, followed by a statutory demand notice in that regard. Since subsequently, post 04.02.2016, the cheque was again presented on 11.03.2016 and it came to be dishonoured on 16.03.2016 followed by statutory demand notice dated 26.03.2016 within 30 days, thus there is no legal infirmity in this regard. The said aspect of the matter stands considered in the judgment of the Hon'ble Apex Court in MSR Leathers vs. S. Palaniappan and Anr., (2013) 1 SCC 177. With regard to the second submission of the learned counsel for the applicant that already the cheque was lost and it was prone to be misutilized and it came to be misutilized, then a FIR came to be lodged, in which final report came to be submitted and a protest petition was preferred and it was treated to be a complaint case is concerned, thus both the proceedings cannot continue simultaneously together is concerned, the same is not acceptable, particularly when there are different yardsticks and the set of events are even different in the proceedings under Section 138 of N.I. Act and the proceedings under the Indian Penal Code. Further there is neither any order of conviction nor acquittal in favour/against of any aggrieved person. Moreover, what would be relevant is the fact that the summoning order is dated 29.09.2016 and the present application has been presented on 20.07.2025 after a period of more than 9 years. There is no plausible explanation for the enormous and inordinate delay in preferring the present proceedings.

7. Accordingly, interference is declined. The application is disposed of leaving it open to the applicant to contest the trial before the court below while taking all the legal and factual grounds and this Court has no reason to disbelieve that the court below shall consider the same in correct perspective. Order Date :- 1.8.2025 N.S.Rathour (Vikas Budhwar, J)

Applicant :- Jahid Opposite Party :- State of U.P. and Another Counsel for Applicant :- Arvind Kumar Sahu,Praveen Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.

1. Heard Sri Vindeshwari Prasad (AoR No.A/V0331/2012) holding brief of Sri Praveen Kumar Srivastava, learned counsel for the applicant along with Sri Arvind Kumar Sahu, and Sri Indrajeet Singh Yadav, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the proceedings in criminal Complaint Case no.224 of 2018, pending in the Court of Special Judge 138 N.I. Act, Bareilly, Pappu Vs. Jahid, under Section 138 Ν.Ι. Act, Police Station Fatehgan: Pashichami, District Bareilly.

3. Learned counsel for the applicant has submitted that on 25.04.2016, a complaint under Section 138 of N.I. Act was preferred by the O.P. No.2 against the applicant with an allegation that with respect to discharge of a liability with regard to the sale of a property, the applicant herein had drawn a cheque of Rs.15,00,000/- bearing number "071153" dated 15.01.2016, which came to be dishonoured for the first time on 19.01.2016 on the premise that there was insufficient balance. Thereafter the said cheque was represented in the bank which came to be dishonoured on 04.02.2016. Thereafter, a statutory demand notice was issued on 09.03.2016 and thereafter the said cheque was again presented in the bank on 11.03.2016, which came to be dishonoured on 16.03.2016 followed by a statutory demand notice dated 26.03.2016, complaint under Section 138 of N.I. Act on 25.04.2016 and the applicant came to be summoned on 29.09.2016 under Section 138 of N.I. Act. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reasons. Firstly, once the cheque stood dishonoured on 04.02.2016, then the statutory demand notice ought to have been issued within a period of 30 days, but the same was issued on 09.03.2016 beyond 30 days. Further submission is that merely because the cheque was again presented on 11.03.2016 and it was dishonoured on 16.03.2016, the statutory demand notice came to be issued on 26.03.2016 within the time period would not be a ground to validate the infirmity which crept in once earlier the statutory demand notice was beyond the permissible period as per Section 138 and 142 of the N.I. Act. Secondly, he submits that the cheque in question was stolen and an FIR came to be lodged on 27.07.2018, being FIR no.0400 under Sections 379, 419, 420, 467, 468, 471, 504 and 506 IPC in which a final report was submitted and thereafter a protest petition was preferred and it was registered as a complaint case. He thus submits that even otherwise there is no occasion to summon the applicant.

4. Learned A.G.A. on the other hand submits that once the cheque stood drawn, then the presumption under Section 139 of N.I. Act would be there.

5. I have heard submissions so made across the Bar and perused the record carefully.

6. Apparently, as per the allegations in the complaint with respect to discharge of liability, the applicant had drawn a cheque of Rs.15,00,000/- bearing number "071153" which came to be dishonoured on 19.01.2016. Again it was presented in the bank and dishonoured on 04.02.2016, followed by a statutory demand notice dated 09.03.2016 and again the said cheque was represented on 11.03.2016, which came to be dishonoured on 16.03.2016, followed by a statutory demand notice dated 26.03.2016. As regards the contention raised by the learned counsel for the applicant that once on 04.02.2016, as per the complaint, the cheque stood dishonoured, then the statutory demand notice ought to have been issued within 30 days, but the same was issued on 09.03.2016 beyond the permissible period, thus the infirmity came to be crept in and complaint is bound to fail, is not convincible, particularly, when the cheque can be presented and represented for umpteen number of times post dishonour, but the condition would be that the same should be within the maturity period, followed by a statutory demand notice in that regard. Since subsequently, post 04.02.2016, the cheque was again presented on 11.03.2016 and it came to be dishonoured on 16.03.2016 followed by statutory demand notice dated 26.03.2016 within 30 days, thus there is no legal infirmity in this regard. The said aspect of the matter stands considered in the judgment of the Hon'ble Apex Court in MSR Leathers vs. S. Palaniappan and Anr., (2013) 1 SCC 177. With regard to the second submission of the learned counsel for the applicant that already the cheque was lost and it was prone to be misutilized and it came to be misutilized, then a FIR came to be lodged, in which final report came to be submitted and a protest petition was preferred and it was treated to be a complaint case is concerned, thus both the proceedings cannot continue simultaneously together is concerned, the same is not acceptable, particularly when there are different yardsticks and the set of events are even different in the proceedings under Section 138 of N.I. Act and the proceedings under the Indian Penal Code. Further there is neither any order of conviction nor acquittal in favour/against of any aggrieved person. Moreover, what would be relevant is the fact that the summoning order is dated 29.09.2016 and the present application has been presented on 20.07.2025 after a period of more than 9 years. There is no plausible explanation for the enormous and inordinate delay in preferring the present proceedings.

7. Accordingly, interference is declined. The application is disposed of leaving it open to the applicant to contest the trial before the court below while taking all the legal and factual grounds and this Court has no reason to disbelieve that the court below shall consider the same in correct perspective. Order Date :- 1.8.2025 N.S.Rathour (Vikas Budhwar, J)