Anand Kumar v. Anand Prakash) under Section

1. Heard Sri Shivam Kumar Pal, along with Sri Meghraj Pandey learned counsel for the applicant as well as Sri Bhuval Vishwakarma learned AGA for the State/opposite party no.1.

2. This application under Section 528 of the BNSS has been filed by the applicant to quash the the entire proceeding of Complaint Case No.12744 of 2023 (Anand Kumar Vs. Anand Prakash) under Section 138 Ν.Ι. Act, Police Station-Sirsaganj, District-Firozabad as well as impugned summoning order dated 08.05.2023 and Non- Bailalbe Warrant dated 21.09.2024 and its subsequent orders passed by Additional Chief Judicial Magistrate, Shikohabad, District-Firozabad.

3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no.2 on 7.10.2016 against the applicant under Section 138 of the N.I. Act, Complaint Case No.2402 of 2016 with relation to dishonouring of a cheque dated 1.8.2016 bearing no.160298 of Rs.18,75,000/- for the first time on 11.8.2016 on account of insufficient funds followed by again presentation of the said cheque in the bank on the assurance of the applicant by the opposite party no.2 on 1.9.2016 which was dishonoured on 3.9.2016 payments stooped by the drawer and a statutory demand notice was issued on 7.9.2016 followed by the complaint on 7.10.2016. He has further submitted that the said complaint stood dismissed for non-prosecution on 9.1.2018 by the court of Additional Chief Judicial Magistrate, Shikohabad, Firozabad.

4. Learned counsel for the applicant has invited attention towards page 25 of the paper book which happens to be another complaint dated 17.1.2018 containing verbatim the same contents which were in the earlier complaint which was dismissed for non prosecution, being cheque of Rs.18,75,000/- dated 1.8.2016 dishonouring on 11.8.2016 again re-presenting the same in the bank on 1.9.2016 dishonouring on 3.9.2018, a statutory demand notice dated 7.9.2016 followed by a complaint under Section 138 of the N.I. Act on 17.1.2018.

5. Learned counsel for the applicant submits that though the said proceedings was a complaint case but it appears that it was recited as Misc. Case No.108 of 2018. A statement under Section 200 of the Cr.P.C. was also made on 16.12.2022 however, the court of Additional Chief Judicial Magistrate, Shikohabad, Firozabad noticed that there was a discrepancy in the title of the case as the same ought to have been registered as a complaint case but it was mentioned as misc.case, therefore, on 13.4.2023 the court of Additional Chief Judicial Magistrate, Firozabad passed an order for registration as a complaint case and thereafter on 8.5.2023 the court below has summoned the applicant under Section 138 of the N.I. Act. Questioning the summoning order dated 8.5.2023 in Complaint Case No.12744 of 2023, (Anand Kumar Vs. Anand Prakash) the present application has been preferred.

6. Submission of the learned counsel for the applicant that no doubt law permits filing of another complaint in case of earlier complaint stood dismissed for non prosecution but the subsequent complaint has to confirm it the provisions under Section 138 read with Section 142 N.I. Act inasmuch as a matter of right the hurdles and the exceptions cannot be overlooked. Further submission is that the subsequent complaint which was made the basis of summoning the applicant lodged on 17.1.2018 was not within the permissible period as the same was beyond statutory period. Next submission is that the statutory notice is stated to have been issued on 7.9.2016, thus, for deemed service under Section 27 of the General Clauses Act, 30 days period is to lapse and thereafter 15 days additional period is to be accorded for making the payment, however, the complaint has been filed much beyond the permissible period. He also submits that there is no recital of any application preferred for condonation of the delay and further the summoning order also does not disclose or advert to the crucial issues. He further submits that the summoning order be set aside, the matter be remitted back to the court below to pass a fresh order.

7. Learned AGA on the other hand submits that though presumption under Section 139 of the N.I. Act is always in favour of the holder once the cheque stood dishonoured but it transpires that the said aspect has not been adverted to which is being sought to be argued with relation the issue of delay. He thus submits that the summoning order be set aside and the matter be remitted back to the court below.

8. I have heard the submissions so made across the bar and perused the record carefully. Before delving into the tenability of the argument of the rival parties, it would be apposite to extract the summoning order dated 8.5.2023 which reads as under:- नययययलय अपर ममखय नययययक मजजसटट टट, यशककहयबयद, यफरकजयबयद। पररवयद ससखयय-12744 सन 2023 आननद कम मयर बनयम आननद पकयश दस०प०सस० जररयट शपथपत सट पररवयदपत कक यदनयसक 08.05.2023 पतयवलल पसतमत। पतयवलल तलबल हटतम यनयत हह। पररवयदल नट अपनट बययन अनतररत धयरय 200 समजथरत यकयय हह। अयभलटखलय सयकय कट रप मम पररवयदल कक ओर सट ममल चहक, नकयटस, समनय तथय पतयवलल कय अवलककन यकयय। पसतमत पकरण मम अयभयमक दयरय यनररत चहक भमरतयन हटतम बबक मम पसतमत करनट पर एक बयर " पटममट सटयपड बयई डट यवर" एवस पमनन " अपययरप धनरययश" कक यटपपणल कट सयथ पररवयदल कक एन०आई०एकट कय वययपस हक रयय। अतन अयभयमक आननद पकयश कट पथम दषयय अपरयध बनतय हह। अतन उक अयभयमक तलब यकयट जयनट यकगय हह। रजजसटटल रसलद पसतमत यकयय रयय हह। वयपसल पत कय जयपन, कयनमनल यवरद धयरय 138 आदटश अयभयमक आननद पकयश कक धयरय 138 एन०आई०एकट मम तलब यकयय जयतय हह। अयभयमक कक समन जयरल हक। पररवयदल पहरवल अयवलमब करम। पतयवलल वयसतट हयजजरल यदनयसक 12-06- 2023 कट जलए जयरल हक। पररवयदल पहरवल करट। अपर ममखय नययययक मजजसटट टट, यशककहयबयद, यफरकजयबयद। ह० अपठनलय

9. A perusal of the summoning order dated 8.5.2023 does not show application of mind as neither the details of the cheque, the date of the dishonour or the statutory notice has been reflected. Since nothing is forthcoming which is required under law which would show that there has been due application of mind, thus, the summoning order cannot be said to be have been passed in correct perspective. Apart from the same, the question regarding the fact as to whether the second complaint was with delay or not has also not been adverted too. These are the questions which are core and fundamental and since nothing is forthcoming thus this Court has no option but to set aside the summoning order while remitting the matter back to the court below to pass a fresh order.

10. Accordingly the summoning order dated 8.5.2023 passed in Complaint Case No.12744 of 2023, (Anand Kumar Vs. Anand Prakash) by court of Additional Chief Judicial Magistrate, Shikohabad, District-Firozabad is set aside. Matter stands remitted back to the court below to pass a fresh order strictly in accordance with law dealing with the core and fundamental issues which may arise for determination and be a ground to be assesed before summoning the accused. For facilitation of early disposal the certified copy of the order passed today be placed before the court below by 30.5.2025.

11. Accordingly, no case is made out. The application stands disposed of. Order Date :- 21.5.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad

1. Heard Sri Shivam Kumar Pal, along with Sri Meghraj Pandey learned counsel for the applicant as well as Sri Bhuval Vishwakarma learned AGA for the State/opposite party no.1.

2. This application under Section 528 of the BNSS has been filed by the applicant to quash the the entire proceeding of Complaint Case No.12744 of 2023 (Anand Kumar Vs. Anand Prakash) under Section 138 Ν.Ι. Act, Police Station-Sirsaganj, District-Firozabad as well as impugned summoning order dated 08.05.2023 and Non- Bailalbe Warrant dated 21.09.2024 and its subsequent orders passed by Additional Chief Judicial Magistrate, Shikohabad, District-Firozabad.

3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no.2 on 7.10.2016 against the applicant under Section 138 of the N.I. Act, Complaint Case No.2402 of 2016 with relation to dishonouring of a cheque dated 1.8.2016 bearing no.160298 of Rs.18,75,000/- for the first time on 11.8.2016 on account of insufficient funds followed by again presentation of the said cheque in the bank on the assurance of the applicant by the opposite party no.2 on 1.9.2016 which was dishonoured on 3.9.2016 payments stooped by the drawer and a statutory demand notice was issued on 7.9.2016 followed by the complaint on 7.10.2016. He has further submitted that the said complaint stood dismissed for non-prosecution on 9.1.2018 by the court of Additional Chief Judicial Magistrate, Shikohabad, Firozabad.

4. Learned counsel for the applicant has invited attention towards page 25 of the paper book which happens to be another complaint dated 17.1.2018 containing verbatim the same contents which were in the earlier complaint which was dismissed for non prosecution, being cheque of Rs.18,75,000/- dated 1.8.2016 dishonouring on 11.8.2016 again re-presenting the same in the bank on 1.9.2016 dishonouring on 3.9.2018, a statutory demand notice dated 7.9.2016 followed by a complaint under Section 138 of the N.I. Act on 17.1.2018.

5. Learned counsel for the applicant submits that though the said proceedings was a complaint case but it appears that it was recited as Misc. Case No.108 of 2018. A statement under Section 200 of the Cr.P.C. was also made on 16.12.2022 however, the court of Additional Chief Judicial Magistrate, Shikohabad, Firozabad noticed that there was a discrepancy in the title of the case as the same ought to have been registered as a complaint case but it was mentioned as misc.case, therefore, on 13.4.2023 the court of Additional Chief Judicial Magistrate, Firozabad passed an order for registration as a complaint case and thereafter on 8.5.2023 the court below has summoned the applicant under Section 138 of the N.I. Act. Questioning the summoning order dated 8.5.2023 in Complaint Case No.12744 of 2023, (Anand Kumar Vs. Anand Prakash) the present application has been preferred.

6. Submission of the learned counsel for the applicant that no doubt law permits filing of another complaint in case of earlier complaint stood dismissed for non prosecution but the subsequent complaint has to confirm it the provisions under Section 138 read with Section 142 N.I. Act inasmuch as a matter of right the hurdles and the exceptions cannot be overlooked. Further submission is that the subsequent complaint which was made the basis of summoning the applicant lodged on 17.1.2018 was not within the permissible period as the same was beyond statutory period. Next submission is that the statutory notice is stated to have been issued on 7.9.2016, thus, for deemed service under Section 27 of the General Clauses Act, 30 days period is to lapse and thereafter 15 days additional period is to be accorded for making the payment, however, the complaint has been filed much beyond the permissible period. He also submits that there is no recital of any application preferred for condonation of the delay and further the summoning order also does not disclose or advert to the crucial issues. He further submits that the summoning order be set aside, the matter be remitted back to the court below to pass a fresh order.

7. Learned AGA on the other hand submits that though presumption under Section 139 of the N.I. Act is always in favour of the holder once the cheque stood dishonoured but it transpires that the said aspect has not been adverted to which is being sought to be argued with relation the issue of delay. He thus submits that the summoning order be set aside and the matter be remitted back to the court below.

8. I have heard the submissions so made across the bar and perused the record carefully. Before delving into the tenability of the argument of the rival parties, it would be apposite to extract the summoning order dated 8.5.2023 which reads as under:- नययययलय अपर ममखय नययययक मजजसटट टट, यशककहयबयद, यफरकजयबयद। पररवयद ससखयय-12744 सन 2023 आननद कम मयर बनयम आननद पकयश दस०प०सस० जररयट शपथपत सट पररवयदपत कक यदनयसक 08.05.2023 पतयवलल पसतमत। पतयवलल तलबल हटतम यनयत हह। पररवयदल नट अपनट बययन अनतररत धयरय 200 समजथरत यकयय हह। अयभलटखलय सयकय कट रप मम पररवयदल कक ओर सट ममल चहक, नकयटस, समनय तथय पतयवलल कय अवलककन यकयय। पसतमत पकरण मम अयभयमक दयरय यनररत चहक भमरतयन हटतम बबक मम पसतमत करनट पर एक बयर " पटममट सटयपड बयई डट यवर" एवस पमनन " अपययरप धनरययश" कक यटपपणल कट सयथ पररवयदल कक एन०आई०एकट कय वययपस हक रयय। अतन अयभयमक आननद पकयश कट पथम दषयय अपरयध बनतय हह। अतन उक अयभयमक तलब यकयट जयनट यकगय हह। रजजसटटल रसलद पसतमत यकयय रयय हह। वयपसल पत कय जयपन, कयनमनल यवरद धयरय 138 आदटश अयभयमक आननद पकयश कक धयरय 138 एन०आई०एकट मम तलब यकयय जयतय हह। अयभयमक कक समन जयरल हक। पररवयदल पहरवल अयवलमब करम। पतयवलल वयसतट हयजजरल यदनयसक 12-06- 2023 कट जलए जयरल हक। पररवयदल पहरवल करट। अपर ममखय नययययक मजजसटट टट, यशककहयबयद, यफरकजयबयद। ह० अपठनलय

9. A perusal of the summoning order dated 8.5.2023 does not show application of mind as neither the details of the cheque, the date of the dishonour or the statutory notice has been reflected. Since nothing is forthcoming which is required under law which would show that there has been due application of mind, thus, the summoning order cannot be said to be have been passed in correct perspective. Apart from the same, the question regarding the fact as to whether the second complaint was with delay or not has also not been adverted too. These are the questions which are core and fundamental and since nothing is forthcoming thus this Court has no option but to set aside the summoning order while remitting the matter back to the court below to pass a fresh order.

10. Accordingly the summoning order dated 8.5.2023 passed in Complaint Case No.12744 of 2023, (Anand Kumar Vs. Anand Prakash) by court of Additional Chief Judicial Magistrate, Shikohabad, District-Firozabad is set aside. Matter stands remitted back to the court below to pass a fresh order strictly in accordance with law dealing with the core and fundamental issues which may arise for determination and be a ground to be assesed before summoning the accused. For facilitation of early disposal the certified copy of the order passed today be placed before the court below by 30.5.2025.

11. Accordingly, no case is made out. The application stands disposed of. Order Date :- 21.5.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad