Moin Rahman v. Syed Mohammad Haider) under Section

1. Vakalatnama has been filed on behalf of Shri Ankit Tiwari (A/A 0710/24) counsel for opposite party no.2, is taken on record.

2. Heard Shri Abu Bakht and Shri Firoz Haider, learned counsel for the applicant, Shri S.K. Singh, learned AGA for the State and Shri Ankit Tiwari, learned counsel for the opposite party no.2.

3. This application under Section 528 BNSS has been filed by the applicant to quash the summoning order dated 15.03.2021 passed by Metropolitan Magistrate, Court No.08, Kanpur Nagar as well as Complaint Case No.799 of 2020 (Moin Rahman Versus Syed Mohammad Haider) under Section 138 of the Negotiable Instrument Act, Police Station Nazirabad, District Kanpur Nagar.

4. The statement has been made by the learned counsel for the opposite party no.2 that he does not propose to file any affidavit and the application be decided on the basis of documents available on record. With consent of the parties the application is decided at the fresh stage.

5. The case of the applicant is that a complaint stood lodged by the opposite party no.2 under Section 138 N.I. Act arraigned the applicant as an accused with the allegations that with respect to the discharge of the liability two cheques came to be drawn by the applicant bearing Cheque No.000475 of Rs. 7,20,000/- dated 06.01.2020 and another Cheque No.020155 of Rs. 7,20,000/- dated 03.03.2020 in favour of the applicant which on presentation 2 NA528 No. 37414 of 2025 in the bank came to be dishonoured on 03.03.2020 with the remark "funds insufficient" followed by the statutory demand notice dated 18.03.2020, a complaint on 07.01.2020 and the applicant came to be summoned under Section 138 N.I. Act on 15.03.2021 by the Court of Metropolitan Magistrate, Court No.08, Kanpur Nagar.

6. Questioning the summoning order, the applicant has been filed the present application.

7. Learned counsel for the applicant submit that the summoning order cannot be sustained for the simple reason that a perusal of the cheques in question would reveal that the same has to be drawn by the applicant and the authorized signatory but the same was on behalf of TDCI Private Ltd. and thus, the rigour of Section 141 N.I. Act would come into play. Submission is without arraigning the company as a party the complaint would not be maintainable. He further submits that the company has not been arraigned and further, one of the pre condition would be that the company ought to have been issued statutory demand notice which has not been done. He, seeks to rely upon the judgment of the Apex Court in Aneeta Hada Vs. Godfather Travels & Tours Pvt. Ltd., (2012) 5 SCC 661, Himanshu Vs. B. Shiva Murthy (2019) 3 SCC 797, Charanjit Pal Jindal Vs. M/s. L.N. Metalics 2015 (15) SCC 768.

8. Learned counsel for the applicant also relied upon the decision of the Apex Court in Application u/s 482 Cr.P.C. No. 13742 of 2021 decided on

12.03.2025 (Mohd Khalid Vs.State of U.P.) so as to content even if complainant have not been impleaded the company as a party, then no additional accused can be impleaded in the complaint under Section 138 N.I. Act, once the limitation period for taking cognizance of the offence under Section 142 N.I. Act has expired.

9. Learned A.G.A. and Shir Ankit Tiwari, learned counsel for the opposite party no.2 on the other hand, submits that once the cheques be drawn which has not been dishonoured presumption of Section 139 N.I. Act is there. He, further submits that mere non arraigning of the company as an accused is curable defects and seeks and rely upon the decision of the Delhi High Court in Himanshu Vs. TCNS Clothing Co. Ltd. W.P.(Crl.) 3 NA528 No. 37414 of 2025 1989/2022 & CRL. M.A. 17238 of 2022 decided on 01.09.2025. He however, submits that as per the instructions that the order be set aside and the matter be remitted back to Court below to pass fresh orders strictly in accordance with law.

10. Shri Abu Bakht and Shri Firoz Haider, learned counsel for the applicant submits that the core fundamental issues have not been taken note, thus the matter be remitted back to Court below to pass fresh orders.

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

12. Apparently, two cheques as noted above, came to be drawn by the applicant which has been dishonoured. The claim of the applicant is that the two cheques were drawn by the applicant and authorized signatory on behalf of company and thus the company ought to have been impleaded as an accused and in this regard reliance has been placed upon the judgment of the Apex Court in Aneeta Hada (Supra), Himanshu (Supra), Charanjit Pal Jindal (Supra). Further reliance has been placed upon the decision in Mohd. Khalid (Supra) so as to content that limitation period for taking cognizance of the offence has come to an end then the additional accused cannot be impleaded. However, according to Shri Ankit Tiwari, learned counsel for the opposite party no.2 the same is curable defects as he seeks to rely upon the decision of Delhi High Court in Himanshu Vs. TCNS Clothing Co. Ltd. W.P.(Crl.) 1989/2022 & CRL. M.A. 17238 of 2022 decided on 01.09.2025. Since, according to the rival parties they have jointly prayed that the order be set aside so as to enable the Court below to record a particular findings in this regard and pass a fresh order in accordance with law.

13. Thus, the present application is being decided in the following terms: (a) The order dated 15.03.2021 passed by Metropolitan Magistrate, Court No.08, Kanpur Nagar in Complaint Case No.799 of 2020 (Moin Rahman Versus Syed Mohammad Haider) under Section 138 of the Negotiable Instrument Act, Police Station Nazirabad, District Kanpur Nagar is set aside. (b) The matter stands remitted back to the Trial Court pass fresh order 4 NA528 No. 37414 of 2025 strictly in accordance with law.

14. It goes without saying that the proceedings be also decided as per the mandate of the Act.

15. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 29.10.2025 and the court below shall proceed to decide the said proceeding with most expedition.

16. Needless to point out that the Court has not adjudicated upon the merits of the case.

17. Accordingly, the application stands disposed of. September 25, 2025 Imtiyaz (Vikas Budhwar,J.) IMTIYAZ AHMAD IMTIYAZ AHMAD High Court of Judicature at Allahabad High Court of Judicature at Allahabad

1. Vakalatnama has been filed on behalf of Shri Ankit Tiwari (A/A 0710/24) counsel for opposite party no.2, is taken on record.

2. Heard Shri Abu Bakht and Shri Firoz Haider, learned counsel for the applicant, Shri S.K. Singh, learned AGA for the State and Shri Ankit Tiwari, learned counsel for the opposite party no.2.

3. This application under Section 528 BNSS has been filed by the applicant to quash the summoning order dated 15.03.2021 passed by Metropolitan Magistrate, Court No.08, Kanpur Nagar as well as Complaint Case No.799 of 2020 (Moin Rahman Versus Syed Mohammad Haider) under Section 138 of the Negotiable Instrument Act, Police Station Nazirabad, District Kanpur Nagar.

4. The statement has been made by the learned counsel for the opposite party no.2 that he does not propose to file any affidavit and the application be decided on the basis of documents available on record. With consent of the parties the application is decided at the fresh stage.

5. The case of the applicant is that a complaint stood lodged by the opposite party no.2 under Section 138 N.I. Act arraigned the applicant as an accused with the allegations that with respect to the discharge of the liability two cheques came to be drawn by the applicant bearing Cheque No.000475 of Rs. 7,20,000/- dated 06.01.2020 and another Cheque No.020155 of Rs. 7,20,000/- dated 03.03.2020 in favour of the applicant which on presentation 2 NA528 No. 37414 of 2025 in the bank came to be dishonoured on 03.03.2020 with the remark "funds insufficient" followed by the statutory demand notice dated 18.03.2020, a complaint on 07.01.2020 and the applicant came to be summoned under Section 138 N.I. Act on 15.03.2021 by the Court of Metropolitan Magistrate, Court No.08, Kanpur Nagar.

6. Questioning the summoning order, the applicant has been filed the present application.

7. Learned counsel for the applicant submit that the summoning order cannot be sustained for the simple reason that a perusal of the cheques in question would reveal that the same has to be drawn by the applicant and the authorized signatory but the same was on behalf of TDCI Private Ltd. and thus, the rigour of Section 141 N.I. Act would come into play. Submission is without arraigning the company as a party the complaint would not be maintainable. He further submits that the company has not been arraigned and further, one of the pre condition would be that the company ought to have been issued statutory demand notice which has not been done. He, seeks to rely upon the judgment of the Apex Court in Aneeta Hada Vs. Godfather Travels & Tours Pvt. Ltd., (2012) 5 SCC 661, Himanshu Vs. B. Shiva Murthy (2019) 3 SCC 797, Charanjit Pal Jindal Vs. M/s. L.N. Metalics 2015 (15) SCC 768.

8. Learned counsel for the applicant also relied upon the decision of the Apex Court in Application u/s 482 Cr.P.C. No. 13742 of 2021 decided on

12.03.2025 (Mohd Khalid Vs.State of U.P.) so as to content even if complainant have not been impleaded the company as a party, then no additional accused can be impleaded in the complaint under Section 138 N.I. Act, once the limitation period for taking cognizance of the offence under Section 142 N.I. Act has expired.

9. Learned A.G.A. and Shir Ankit Tiwari, learned counsel for the opposite party no.2 on the other hand, submits that once the cheques be drawn which has not been dishonoured presumption of Section 139 N.I. Act is there. He, further submits that mere non arraigning of the company as an accused is curable defects and seeks and rely upon the decision of the Delhi High Court in Himanshu Vs. TCNS Clothing Co. Ltd. W.P.(Crl.) 3 NA528 No. 37414 of 2025 1989/2022 & CRL. M.A. 17238 of 2022 decided on 01.09.2025. He however, submits that as per the instructions that the order be set aside and the matter be remitted back to Court below to pass fresh orders strictly in accordance with law.

10. Shri Abu Bakht and Shri Firoz Haider, learned counsel for the applicant submits that the core fundamental issues have not been taken note, thus the matter be remitted back to Court below to pass fresh orders.

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

12. Apparently, two cheques as noted above, came to be drawn by the applicant which has been dishonoured. The claim of the applicant is that the two cheques were drawn by the applicant and authorized signatory on behalf of company and thus the company ought to have been impleaded as an accused and in this regard reliance has been placed upon the judgment of the Apex Court in Aneeta Hada (Supra), Himanshu (Supra), Charanjit Pal Jindal (Supra). Further reliance has been placed upon the decision in Mohd. Khalid (Supra) so as to content that limitation period for taking cognizance of the offence has come to an end then the additional accused cannot be impleaded. However, according to Shri Ankit Tiwari, learned counsel for the opposite party no.2 the same is curable defects as he seeks to rely upon the decision of Delhi High Court in Himanshu Vs. TCNS Clothing Co. Ltd. W.P.(Crl.) 1989/2022 & CRL. M.A. 17238 of 2022 decided on 01.09.2025. Since, according to the rival parties they have jointly prayed that the order be set aside so as to enable the Court below to record a particular findings in this regard and pass a fresh order in accordance with law.

13. Thus, the present application is being decided in the following terms: (a) The order dated 15.03.2021 passed by Metropolitan Magistrate, Court No.08, Kanpur Nagar in Complaint Case No.799 of 2020 (Moin Rahman Versus Syed Mohammad Haider) under Section 138 of the Negotiable Instrument Act, Police Station Nazirabad, District Kanpur Nagar is set aside. (b) The matter stands remitted back to the Trial Court pass fresh order 4 NA528 No. 37414 of 2025 strictly in accordance with law.

14. It goes without saying that the proceedings be also decided as per the mandate of the Act.

15. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 29.10.2025 and the court below shall proceed to decide the said proceeding with most expedition.

16. Needless to point out that the Court has not adjudicated upon the merits of the case.

17. Accordingly, the application stands disposed of. September 25, 2025 Imtiyaz (Vikas Budhwar,J.) IMTIYAZ AHMAD IMTIYAZ AHMAD High Court of Judicature at Allahabad High Court of Judicature at Allahabad