Shekhar Sharma v. Nita Dwivedi) under Section

1.Sri Ashutosh Upadhyay, Advocate has Vakalatnama on behalf of opposite party No.2, is taken on record.

2. Heard Sri Akash Kishan, learned counsel for applicant, Sri S.P. Singh, learned State Law Officer for the State and Sri Ashutosh Upadhyay, learned counsel for opposite party No.2.

3. This application under Section 528 B.N.S.S. has been filed by the applicant to set aside the impugned order dated 29.3.2025 passed by the Additional Civil Judge (Junior Division), Banda as well as entire proceeding of Complaint Case No.723 of 2024 (Shekhar Sharma Vs. Nita Dwivedi) under Section 138 of Negotiable Instruments Act, P.S. Kotwali Nagar, District Banda.

4. The case of the applicant is that a complaint stood lodged by the opposite party No.3 with an allegation that with respect to discharge of the liability had drawn cheque bearing No.632647 of Rs.4,00,000/- dated 25.12.2023 which on presentation in the bank came to be dishonored on 20.2.2024 and thereafter again it was represented on 20.3.2024 which came to be dishonoured on 21.3.2024 followed by a statutory demand notice came to be issued on 2.4.2024 pursuant to applicant was summoned. Thereafter proceedings of NBW and proceedings under Section 82 Cr.P.C. stood initiated. Thereafter on 29.3.2025 an order came to be passed which reads as under:- " ्ऺस्तुत । पिरवादी की हािजरी माफी ्ऺस्तुत स्वीकृ त अिभयुकत अनुपिस्थत । िदनांक 29.4.25 के िलये अिभयु्व जिरये पूवर्त एन बी डब्लू + 82 से० + 83 सी आर पी सी प्ऴ को०नगर तलब हो"

5. Learned counsel for applicant has submitted that applicant happens to be father-in-law of the opposite party No.3 accused and he has nothing to do and has no connection with the proceedings lodged by the opposite 2 NA528 No. 26327 of 2025 party No.2 against the opposite party No.3 as he has not a party in the said proceeding. However, in the grab of the execution of NBW and proceedings of Section 82 of Cr.P.C. the property which is self owned acquired property of the applicant is put to the proceeding under Section 82 Cr.P.C. Submission is that once the applicant herein is not an accused and there is no legal debt or liability against him then by stretch of imagination the property of the applicant which is self acquired property can be put to proceedings under Section 82 of Cr.P.C. Reliance has been placed upon the judgment passed by coordinate Bench of this Court in Crl. Appeal No.194 of 2024 Faiyaz Abbas Vs. State of U.P. on 18.7.2024.

6. Learned counsel for opposite party No.2 on the other hand submits that applicant is not an accused arraigned in the complaint but however, the opposite party No.3 who happens to be the accused along with her husband is residing in the house of the applicant. However, he concedes to the facts that the property which is self acquired property of the applicant cannot be put to proceedings under Section 82 or 83 Cr.P.C. According to him the order which is being subject matter of challenge dated 29.3.2025 is not against the applicant. However, it is against the opposite party No.3.

7. Learned State Law Officer has adopted the arguments so made by the learned counsel for opposite party No.2.

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

9. Apparently, complaint would go to show that the opposite party No.3 has been arraigned an accused and the opposite party No.2 is the complainant and the applicant is not an accused herein once the N.B.W. has been issued against the proceedings under Section 82 Cr.P.C. against the opposite party No.3 then by no stretch of imagination the self acquired property of the applicant can be put to proceeding under Sections 82 or 83 Cr.P.C. The said issue is no more res integra as in Faiyaz Abbas (Supra) in para 16 of the 17 following was observed: "16. From the objections as were raised by the appellant before the concerned court, it clearly emerges that the property in fact belongs to the appellant and not his son Faiz Abbas, the proclaimed person, consequently, it was in the fitness of things that this aspect of the matter should have been considered by the concerned court instead of rejecting the application on the ground that while deciding the application, the ownership or possession of the property is not required to be seen.

17. The aforesaid finding and reasoning is found patently perverse, more particularly, considering subsections (1) & (2) of Section 83 of the Code which clearly stipulates that it is only the property belonging to the proclaimed person which can be attached. Thus, the sine-qua-non to an order being passed under the provisions of Section 83 of 3 NA528 No. 26327 of 2025 the Code would be of a finding, may be prima facie, that the property for which the attachment order is being passed belongs to the accused person and consequently, without such finding, obviously, no such order could have been passed under the provision of Section 83 of the Code which in turn has been affirmed with the dismissal of the objections filed by the appellant."

10. Looking into the over all facts situation and bearing in mind the fact that on 29.3.2025 only an order has been passed in the Complaint Case No.723 of 2024 (Shekhar Sharma Vs. Nita Dwivedi) for issuing of N.B.W. and execution of the proceedings under Sections 82 and 83 Cr.P.C., thus the property of the applicant which is self acquired cannot be put to proceedings under Sections 82 and 83 Cr.P.C.

11. With the said observations, the application stands disposed of. September 23, 2025 Md Faisal (Vikas Budhwar,J.) MOHD FAISAL High Court of Judicature at Allahabad

1.Sri Ashutosh Upadhyay, Advocate has Vakalatnama on behalf of opposite party No.2, is taken on record.

2. Heard Sri Akash Kishan, learned counsel for applicant, Sri S.P. Singh, learned State Law Officer for the State and Sri Ashutosh Upadhyay, learned counsel for opposite party No.2.

3. This application under Section 528 B.N.S.S. has been filed by the applicant to set aside the impugned order dated 29.3.2025 passed by the Additional Civil Judge (Junior Division), Banda as well as entire proceeding of Complaint Case No.723 of 2024 (Shekhar Sharma Vs. Nita Dwivedi) under Section 138 of Negotiable Instruments Act, P.S. Kotwali Nagar, District Banda.

4. The case of the applicant is that a complaint stood lodged by the opposite party No.3 with an allegation that with respect to discharge of the liability had drawn cheque bearing No.632647 of Rs.4,00,000/- dated 25.12.2023 which on presentation in the bank came to be dishonored on 20.2.2024 and thereafter again it was represented on 20.3.2024 which came to be dishonoured on 21.3.2024 followed by a statutory demand notice came to be issued on 2.4.2024 pursuant to applicant was summoned. Thereafter proceedings of NBW and proceedings under Section 82 Cr.P.C. stood initiated. Thereafter on 29.3.2025 an order came to be passed which reads as under:- " ्ऺस्तुत । पिरवादी की हािजरी माफी ्ऺस्तुत स्वीकृ त अिभयुकत अनुपिस्थत । िदनांक 29.4.25 के िलये अिभयु्व जिरये पूवर्त एन बी डब्लू + 82 से० + 83 सी आर पी सी प्ऴ को०नगर तलब हो"

5. Learned counsel for applicant has submitted that applicant happens to be father-in-law of the opposite party No.3 accused and he has nothing to do and has no connection with the proceedings lodged by the opposite 2 NA528 No. 26327 of 2025 party No.2 against the opposite party No.3 as he has not a party in the said proceeding. However, in the grab of the execution of NBW and proceedings of Section 82 of Cr.P.C. the property which is self owned acquired property of the applicant is put to the proceeding under Section 82 Cr.P.C. Submission is that once the applicant herein is not an accused and there is no legal debt or liability against him then by stretch of imagination the property of the applicant which is self acquired property can be put to proceedings under Section 82 of Cr.P.C. Reliance has been placed upon the judgment passed by coordinate Bench of this Court in Crl. Appeal No.194 of 2024 Faiyaz Abbas Vs. State of U.P. on 18.7.2024.

6. Learned counsel for opposite party No.2 on the other hand submits that applicant is not an accused arraigned in the complaint but however, the opposite party No.3 who happens to be the accused along with her husband is residing in the house of the applicant. However, he concedes to the facts that the property which is self acquired property of the applicant cannot be put to proceedings under Section 82 or 83 Cr.P.C. According to him the order which is being subject matter of challenge dated 29.3.2025 is not against the applicant. However, it is against the opposite party No.3.

7. Learned State Law Officer has adopted the arguments so made by the learned counsel for opposite party No.2.

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

9. Apparently, complaint would go to show that the opposite party No.3 has been arraigned an accused and the opposite party No.2 is the complainant and the applicant is not an accused herein once the N.B.W. has been issued against the proceedings under Section 82 Cr.P.C. against the opposite party No.3 then by no stretch of imagination the self acquired property of the applicant can be put to proceeding under Sections 82 or 83 Cr.P.C. The said issue is no more res integra as in Faiyaz Abbas (Supra) in para 16 of the 17 following was observed: "16. From the objections as were raised by the appellant before the concerned court, it clearly emerges that the property in fact belongs to the appellant and not his son Faiz Abbas, the proclaimed person, consequently, it was in the fitness of things that this aspect of the matter should have been considered by the concerned court instead of rejecting the application on the ground that while deciding the application, the ownership or possession of the property is not required to be seen.

17. The aforesaid finding and reasoning is found patently perverse, more particularly, considering subsections (1) & (2) of Section 83 of the Code which clearly stipulates that it is only the property belonging to the proclaimed person which can be attached. Thus, the sine-qua-non to an order being passed under the provisions of Section 83 of 3 NA528 No. 26327 of 2025 the Code would be of a finding, may be prima facie, that the property for which the attachment order is being passed belongs to the accused person and consequently, without such finding, obviously, no such order could have been passed under the provision of Section 83 of the Code which in turn has been affirmed with the dismissal of the objections filed by the appellant."

10. Looking into the over all facts situation and bearing in mind the fact that on 29.3.2025 only an order has been passed in the Complaint Case No.723 of 2024 (Shekhar Sharma Vs. Nita Dwivedi) for issuing of N.B.W. and execution of the proceedings under Sections 82 and 83 Cr.P.C., thus the property of the applicant which is self acquired cannot be put to proceedings under Sections 82 and 83 Cr.P.C.

11. With the said observations, the application stands disposed of. September 23, 2025 Md Faisal (Vikas Budhwar,J.) MOHD FAISAL High Court of Judicature at Allahabad