Apar Singh v. Manoj Gautam and another) under the provision of

1. Heard Sri Sohan Lal Yadav, learned counsel for the applicant and Sri S.K. Singh, learned AGA for the State.

2. This application u/s 528 of BNSS has been preferred to quash the entire proceedings arising out of Complaint Case No.2155 of 2017 (Apar Singh Vs. Manoj Gautam and another) under the provision of 138 N. I. Act. Police Station Surajpur, pending before Special Court (138 N. I. Act.) Gautam Budh Nagar.

3. Learned counsel for the applicant has submitted that a complaint was lodged by opposite party no. 2 against the applicant on 09.08.2017 while making the applicant as well as one Sri Manoj Gautam and company as an accused with an allegation that with respect to discharge of the liability of two cheques bearing no. 535516 dated 20.05.2017 and 535517 dated 07.06.2017 was drawn by the applicant and the other accused marked in the complaint which on presentation in the bank stood dishonored on 19.06.2017 and 12.06.2017 followed by a statutory demand notice dated 29.06.2017 which came to be served upon the applicant on 03.07.2017, 07.07.2017 and 11.07.2017 and on account of non- payment of the dues, a complaint was lodged on 09.08.2017 pursuant whereto, the applicant came to be summoned on 05.06.2018.

4. Thereafter, an application came to be preferred u/s 482 no. 21919 of 2019 (Daya Ram Prajapati Vs. State of U.P.) in which an order came to be passed by this Court which reads as under.- "Heard learned counsel for the applicant and learned AGA for the State. This application has been filed by the applicant with a prayer to quash the entire proceedings of complaint case no.2155 of 2017, under Section 138 N.I. Act, Police Station Surajpur, pending in the court of Additional Court no.1, District G.B. Nagar. Plea is legal that the transaction in question took place between the City Centre Inra Developers and the applicant happens to be one of the employees of the company in question, although, he did not issue any cheque as such and in the absence of impleadment of the company, how can the complaint be proceeded against the applicant in his single capacity. Heard learned AGA for the State. If the claim of the applicant is sustained, no proceeding under Section 138 of N.I. Act can be gone into against the applicant and the court below is barred from initiating any process against the applicant, now it is upto the applicant to move appropriate application before the court concerned raising it same plea and in case it is is discovered that the transaction was between the company and the company has not been impleaded as opposite party then the proceeding now shall become redundant against the applicant and it will be ordered to be terminated against him by the court below. Let it is to be ensured whether the applicant happens to be the authorized signatory or not of the cheque in question and specific finding shall be recorded on that count also the applicant deserves exoneration. Applicant is required to move appropriate application U/s 245(2) Cr.P.C. and that application will be considered expeditiously within six weeks from the date it is presented along with certified copy of this order. Till the period of six weeks, no coercive action shall be taken in the first count and till disposal of application within six weeks' in second count provided the applicant cooperates in disposal of this application. In view of above, this application is finally disposed off."

5. The discharge application so preferred by the applicant came to be rejected on 04.02.2020 by the court below. Subsequently, another Application u/s 482 No. 8623 of 2022 came to be preferred by the applicant in which on 06.08.2022 following order was passed.- अनतररत धधरध 138 सन 2017, जज ए०सज० जव०एम०, पररवधद वधद सद0 " आववदक कक ओर सव धधरध 482 2155 जजलध जज०बज० नरर, मम आववदक दधरध पसतपत ककए जधनव वधलव आववदन पत कध कनसतधरण शजघतध कव आधधर पर करनव कध कनदरश कदए जधनव हवतप दधयर ककयध रयध हह। दद०प०सद० कव अनतररत यह आववदन पत, थधनध ससरजपपर, जज०बज० नरर कव नयधयधलय मम लममबत हह, एन०आई० ऐकट, आववदक कव कवदधन अजधवकध एवद कवदधन अपर शधसककय अजधवकध कज सपनध तथध पतधवलज कध पररशजलन ककयध। कवदधन अजधवकध कध कथन हह कक वह तथधकजथत चवक कदए जधनव कव समय, आववदक कव तथधकजथत कद पनज कध डधयरवकटर नहह थध, तथध सदबदजधत अनधववत चवक सव उसकध कजई सदबदध नहह हह। आववदक इस बधरव मम सदबदजधत अवर नयधयधलय मम आववदन पत पसतपत करनव कज ततपर हह तथध उसकव दधरध ऐसध पधथरनध पत पसतपत करनव पर सदबदजधत नयधयधलय कज उक पधथरनध पत कध कनसतधरण शजघतध कव आधधर पर करनव कध कनदरश कदयध जधय। ममनव आववदक कव कवदधन अजधवकध कव तकक कव पररपवकय मम पतधवलज कध पररशजलन ककयध। मधमलव कव तथयक एवद पररमसथकतयक कज दवखतव हहए, सदबदजधत अवर नयधयधलय कज कनदरकशत ककयध जधतध हह कक आदवदक दधरध यकद इस पकधर कध आववदन पत पसतपत ककयध जधतध हह तज उसकध कनसतधरण कदन पकतकदन सपनवधई करकव , मधह कव अनदर कर कदयध जधय, कनयत कतजथ पर पककधर नयधयधलय मम उपमसथत नहह हजतव हम और अनधवशयक रप सव वधद कज सथकरत करधतव हम तज उनकक उपमसथकत सपकनकशत करनव कव कवरद कनयमधनपसधर आवशयक कधयरवधहज कक जधएरज। शजघतध कव आधधर पर यथधसदभव 2 जलए उनकव इन कनदरशक कव सधथ धधरध 482 कनसतधररत ककयध जधतध हह। दद०प०सद० कव अनतररत दधयर यह आववदन पत अमनतम रप सव कधयधरलय कज कनदरश कदयध जधतध हह कक इस आदवश कक एक पकतजलकप सदबदजधत नयधयधलय कज अकवलमब भवजनध सपकनकशत करव।"

6. Learned counsel for the applicant submits that on 11.12.2023 an application came to be preferred by the applicant before the court below with a prayer that the cheques did not bear the signature of the applicant and he has no connection with the same and the signatures have been fabricated, thus, the same may be verified from the laboratory. The said application came to be rejected by the court below on 18.07.2024 by the court of Special Judge (u/s 138 NI Act), Gautam Buddhnagar against which a criminal revision came to be preferred which was numbered as Criminal Misc. No. 408 of 2024 which came to be rejected on 06.08.2024.

7. Questioning the said orders as well as the entire proceedings, the applicant has preferred the present application.

8. Learned counsel for the applicant has submitted that the applicant has not committed any offence as his signature stood fabricated in the cheque, he submits that the applicant had already preferred an application for verification of the signatures but the said application came to be rejected on totally non existent ground and further the revision also came to be rejected summarily. Submission is that the applicant had resigned from the company in question on 13.11.2015 and the same was accepted on the said date and a communication was also made to the bank on 15.11.2015 and so far as the cheques in question are concerned they are of the year 2017, thus, no offence can be made out according to him, no legally enforceable debt can be attracted against the applicant and further the applicant is not a drawer.

9. Learned AGA, on the other hand, while countering the submission of the learned counsel for the applicant has submitted that the applicant had earlier approached this Court while questioning the summoning order, however, he was accorded liberty to prefer a discharge application and the said discharge application came to be rejected and again the applicant preferred an application before this Court which was disposed of, thus, it is for the applicant to contest the trial. He further submits that rightly the application preferred by the applicant for verifying the signature was rejected particularly when the ground for dishonor was not the mismatch of the signature but was relatable to insufficiency of funds. He submits that the document which have been appended thereto are only the letter of the applicant seeking resignation and a document in the shape of Rs. 100/- non judicial stamp accepting the resignation. He submits that the applicants resignation can be verified from a document issued by the Corporate Affairs being the Autonomous Body.

10. I have heard the submissions so made across the bar and perused the record carefully.

11. Apparently, a complaint stood lodged on 09.08.2017 against the applicant with respect to dishonoring of cheques. The applicant was summoned on 05.06.2018 questioning the summoning order, the applicant preferred Application u/s 482 no. 21919 of 2019 which came to be disposed of requiring the applicant to prefer discharge application which came to be rightly rejected on 04.02.2020 against which the applicant preferred another application u/s 482 no. 8623 of 2022 which came to be disposed of.

12. The first and foremost question which would arise for consideration is whether at this stage when the proceedings are underway any interference would be appropriate or not. Apparently, the applicant on two occasions had approached this Court but the Court did not interfere with the summoning order. Moreover, the applicant while participating in the proceedings had preferred an application for verification of the signature on 11.12.2023 on the premise that his signatures have been fabricated and the said application had been rejected by the court below on the premise that the basic reason for dishonoring was insufficiency of fund.

13. In the opinion of the Court, it is for the applicant to contest the proceedings before the court below taking all legal grounds which are permissible and advisable under law in order to prove the fact that the applicant had resigned in the year 2015 and, thus, he has no liability. This Court in the present proceedings at this stage is not required to record any finding upon the factual aspect regarding the fact as to whether the documents filed by the applicant for showing resignation in the year 2015 are sufficient or genuine. It is a subject matter of trial and all the issues which the applicant seeks to raised are always upon to be raised. The judgment in Rekha Sharad Ushir Vs. Saptashrungi Mahila Nagari Sahkari Patsansta Ltd. 2025 0 Supreme(SC) 541 and Jugesh Sehgal Vs. Shamsher Singh Gogi (2009) 14 SCC 683, there is no quarrel to the proposition of law, however, the said judgments would apply at a stage when the trial commences and when decision is to be taken for acquittal and conviction.

14. Accordingly, no case is made out for interference, the application stands disposed of granting liberty to the applicant to take all legal and factual grounds which are available under law and this Court has no reasons to disbelieve that the same shall be considered with most expedition in correct perspective. Order Date :- 2.7.2025 Rajesh RAJESH KUMAR High Court of Judicature at Allahabad

1. Heard Sri Sohan Lal Yadav, learned counsel for the applicant and Sri S.K. Singh, learned AGA for the State.

2. This application u/s 528 of BNSS has been preferred to quash the entire proceedings arising out of Complaint Case No.2155 of 2017 (Apar Singh Vs. Manoj Gautam and another) under the provision of 138 N. I. Act. Police Station Surajpur, pending before Special Court (138 N. I. Act.) Gautam Budh Nagar.

3. Learned counsel for the applicant has submitted that a complaint was lodged by opposite party no. 2 against the applicant on 09.08.2017 while making the applicant as well as one Sri Manoj Gautam and company as an accused with an allegation that with respect to discharge of the liability of two cheques bearing no. 535516 dated 20.05.2017 and 535517 dated 07.06.2017 was drawn by the applicant and the other accused marked in the complaint which on presentation in the bank stood dishonored on 19.06.2017 and 12.06.2017 followed by a statutory demand notice dated 29.06.2017 which came to be served upon the applicant on 03.07.2017, 07.07.2017 and 11.07.2017 and on account of non- payment of the dues, a complaint was lodged on 09.08.2017 pursuant whereto, the applicant came to be summoned on 05.06.2018.

4. Thereafter, an application came to be preferred u/s 482 no. 21919 of 2019 (Daya Ram Prajapati Vs. State of U.P.) in which an order came to be passed by this Court which reads as under.- "Heard learned counsel for the applicant and learned AGA for the State. This application has been filed by the applicant with a prayer to quash the entire proceedings of complaint case no.2155 of 2017, under Section 138 N.I. Act, Police Station Surajpur, pending in the court of Additional Court no.1, District G.B. Nagar. Plea is legal that the transaction in question took place between the City Centre Inra Developers and the applicant happens to be one of the employees of the company in question, although, he did not issue any cheque as such and in the absence of impleadment of the company, how can the complaint be proceeded against the applicant in his single capacity. Heard learned AGA for the State. If the claim of the applicant is sustained, no proceeding under Section 138 of N.I. Act can be gone into against the applicant and the court below is barred from initiating any process against the applicant, now it is upto the applicant to move appropriate application before the court concerned raising it same plea and in case it is is discovered that the transaction was between the company and the company has not been impleaded as opposite party then the proceeding now shall become redundant against the applicant and it will be ordered to be terminated against him by the court below. Let it is to be ensured whether the applicant happens to be the authorized signatory or not of the cheque in question and specific finding shall be recorded on that count also the applicant deserves exoneration. Applicant is required to move appropriate application U/s 245(2) Cr.P.C. and that application will be considered expeditiously within six weeks from the date it is presented along with certified copy of this order. Till the period of six weeks, no coercive action shall be taken in the first count and till disposal of application within six weeks' in second count provided the applicant cooperates in disposal of this application. In view of above, this application is finally disposed off."

5. The discharge application so preferred by the applicant came to be rejected on 04.02.2020 by the court below. Subsequently, another Application u/s 482 No. 8623 of 2022 came to be preferred by the applicant in which on 06.08.2022 following order was passed.- अनतररत धधरध 138 सन 2017, जज ए०सज० जव०एम०, पररवधद वधद सद0 " आववदक कक ओर सव धधरध 482 2155 जजलध जज०बज० नरर, मम आववदक दधरध पसतपत ककए जधनव वधलव आववदन पत कध कनसतधरण शजघतध कव आधधर पर करनव कध कनदरश कदए जधनव हवतप दधयर ककयध रयध हह। दद०प०सद० कव अनतररत यह आववदन पत, थधनध ससरजपपर, जज०बज० नरर कव नयधयधलय मम लममबत हह, एन०आई० ऐकट, आववदक कव कवदधन अजधवकध एवद कवदधन अपर शधसककय अजधवकध कज सपनध तथध पतधवलज कध पररशजलन ककयध। कवदधन अजधवकध कध कथन हह कक वह तथधकजथत चवक कदए जधनव कव समय, आववदक कव तथधकजथत कद पनज कध डधयरवकटर नहह थध, तथध सदबदजधत अनधववत चवक सव उसकध कजई सदबदध नहह हह। आववदक इस बधरव मम सदबदजधत अवर नयधयधलय मम आववदन पत पसतपत करनव कज ततपर हह तथध उसकव दधरध ऐसध पधथरनध पत पसतपत करनव पर सदबदजधत नयधयधलय कज उक पधथरनध पत कध कनसतधरण शजघतध कव आधधर पर करनव कध कनदरश कदयध जधय। ममनव आववदक कव कवदधन अजधवकध कव तकक कव पररपवकय मम पतधवलज कध पररशजलन ककयध। मधमलव कव तथयक एवद पररमसथकतयक कज दवखतव हहए, सदबदजधत अवर नयधयधलय कज कनदरकशत ककयध जधतध हह कक आदवदक दधरध यकद इस पकधर कध आववदन पत पसतपत ककयध जधतध हह तज उसकध कनसतधरण कदन पकतकदन सपनवधई करकव , मधह कव अनदर कर कदयध जधय, कनयत कतजथ पर पककधर नयधयधलय मम उपमसथत नहह हजतव हम और अनधवशयक रप सव वधद कज सथकरत करधतव हम तज उनकक उपमसथकत सपकनकशत करनव कव कवरद कनयमधनपसधर आवशयक कधयरवधहज कक जधएरज। शजघतध कव आधधर पर यथधसदभव 2 जलए उनकव इन कनदरशक कव सधथ धधरध 482 कनसतधररत ककयध जधतध हह। दद०प०सद० कव अनतररत दधयर यह आववदन पत अमनतम रप सव कधयधरलय कज कनदरश कदयध जधतध हह कक इस आदवश कक एक पकतजलकप सदबदजधत नयधयधलय कज अकवलमब भवजनध सपकनकशत करव।"

6. Learned counsel for the applicant submits that on 11.12.2023 an application came to be preferred by the applicant before the court below with a prayer that the cheques did not bear the signature of the applicant and he has no connection with the same and the signatures have been fabricated, thus, the same may be verified from the laboratory. The said application came to be rejected by the court below on 18.07.2024 by the court of Special Judge (u/s 138 NI Act), Gautam Buddhnagar against which a criminal revision came to be preferred which was numbered as Criminal Misc. No. 408 of 2024 which came to be rejected on 06.08.2024.

7. Questioning the said orders as well as the entire proceedings, the applicant has preferred the present application.

8. Learned counsel for the applicant has submitted that the applicant has not committed any offence as his signature stood fabricated in the cheque, he submits that the applicant had already preferred an application for verification of the signatures but the said application came to be rejected on totally non existent ground and further the revision also came to be rejected summarily. Submission is that the applicant had resigned from the company in question on 13.11.2015 and the same was accepted on the said date and a communication was also made to the bank on 15.11.2015 and so far as the cheques in question are concerned they are of the year 2017, thus, no offence can be made out according to him, no legally enforceable debt can be attracted against the applicant and further the applicant is not a drawer.

9. Learned AGA, on the other hand, while countering the submission of the learned counsel for the applicant has submitted that the applicant had earlier approached this Court while questioning the summoning order, however, he was accorded liberty to prefer a discharge application and the said discharge application came to be rejected and again the applicant preferred an application before this Court which was disposed of, thus, it is for the applicant to contest the trial. He further submits that rightly the application preferred by the applicant for verifying the signature was rejected particularly when the ground for dishonor was not the mismatch of the signature but was relatable to insufficiency of funds. He submits that the document which have been appended thereto are only the letter of the applicant seeking resignation and a document in the shape of Rs. 100/- non judicial stamp accepting the resignation. He submits that the applicants resignation can be verified from a document issued by the Corporate Affairs being the Autonomous Body.

10. I have heard the submissions so made across the bar and perused the record carefully.

11. Apparently, a complaint stood lodged on 09.08.2017 against the applicant with respect to dishonoring of cheques. The applicant was summoned on 05.06.2018 questioning the summoning order, the applicant preferred Application u/s 482 no. 21919 of 2019 which came to be disposed of requiring the applicant to prefer discharge application which came to be rightly rejected on 04.02.2020 against which the applicant preferred another application u/s 482 no. 8623 of 2022 which came to be disposed of.

12. The first and foremost question which would arise for consideration is whether at this stage when the proceedings are underway any interference would be appropriate or not. Apparently, the applicant on two occasions had approached this Court but the Court did not interfere with the summoning order. Moreover, the applicant while participating in the proceedings had preferred an application for verification of the signature on 11.12.2023 on the premise that his signatures have been fabricated and the said application had been rejected by the court below on the premise that the basic reason for dishonoring was insufficiency of fund.

13. In the opinion of the Court, it is for the applicant to contest the proceedings before the court below taking all legal grounds which are permissible and advisable under law in order to prove the fact that the applicant had resigned in the year 2015 and, thus, he has no liability. This Court in the present proceedings at this stage is not required to record any finding upon the factual aspect regarding the fact as to whether the documents filed by the applicant for showing resignation in the year 2015 are sufficient or genuine. It is a subject matter of trial and all the issues which the applicant seeks to raised are always upon to be raised. The judgment in Rekha Sharad Ushir Vs. Saptashrungi Mahila Nagari Sahkari Patsansta Ltd. 2025 0 Supreme(SC) 541 and Jugesh Sehgal Vs. Shamsher Singh Gogi (2009) 14 SCC 683, there is no quarrel to the proposition of law, however, the said judgments would apply at a stage when the trial commences and when decision is to be taken for acquittal and conviction.

14. Accordingly, no case is made out for interference, the application stands disposed of granting liberty to the applicant to take all legal and factual grounds which are available under law and this Court has no reasons to disbelieve that the same shall be considered with most expedition in correct perspective. Order Date :- 2.7.2025 Rajesh RAJESH KUMAR High Court of Judicature at Allahabad