State of U.P. and Another Counsel for v. With
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 482 No. - 41417 of 2024 (Leading) Zafar Mansoor State of U.P. and Another Counsel for Applicant(s) Counsel for Opposite Party(s) Versus With .....Applicant(s) .....Opposite Party(s) : : Sarvesh G.A. APPLICATION U/S 482 No. - 41910 of 2024 (Connected-C1) Zafar Mansoor State of U.P. and Another Counsel for Applicant(s) Counsel for Opposite Party(s) Versus And .....Applicant(s) .....Opposite Party(s) : : Sarvesh G.A. APPLICATION U/S 482 No. - 42138 of 2024 (Connected-C2) Zafar Mansoor State of U.P. and Another Versus Counsel for Applicant(s) Counsel for Opposite Party(s) Court No. - 75 .....Applicant(s) .....Opposite Party(s) : : Sarvesh G.A. HON'BLE VIKAS BUDHWAR, J.
Legal Reasoning
summoning, this Court in exercise of inherent jurisdiction under Section 482 of CrPC/528 of BNSS is required to delve into the factual issues or not. As a matter of fact, the question whether the cheques were lost or were prone to be misutilized and were misutilized and further the complaint had been lodged before the Police Station regarding misplacement of the said cheques and also communication was made to the bank is concerned, the are at best defences, consideration whereof would be required only when the trial commences and not at the stage of summoning. At the stage of summoning 4 A482 No. 41417 of 2024 what would be relevant wouold be the statutory presumption under Section 118 read with Section 139 of the N.I. Act. This Court at this stage is not required to usurp the exercise which is to be undertaken by the adjudicating authority while holding the trial. It would be for the applicant to contest the proceedings while taking all legal and factual counts which are available and permissible under law including the same which is being argued amongst others. The present case does not come within the exceptional category so as to invoke inherent jurisdiction. 8. 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. September 2, 2025 N.S.Rathour (Vikas Budhwar,J.) Digitally signed by :- SWETA YADAV High Court of Judicature at Allahabad
Arguments
1. Heard Sri Sarvesh, learned counsel for the applicant in leading, connected-C1 and connected-C2 application and Sri Vikas Sharma, learned 2 A482 No. 41417 of 2024 State Law Officer for the State. 2. The facts of the leading application are that a complaint was preferred by O.P. No.2 against the applicant under Section 138 of N.I. Act with an allegation that the applicant herein had taken a financial assistance of Rs.1,50,000/- from O.P. No.2 and with respect to discharge of his liability, a cheque bearing number "020853" of an amount of Rs.1,50,000/- came to be drawn on 06.04.2024, which on presentation in the bank came to be dishonoured on 08.04.2024 followed by statutory demand notice dated 22.04.2024 and a complaint on 29.05.2024 and the applicant came to be summoned under Section 138 of N.I. Act on 01.08.2024 in Complaint Case No.43475 of 2024 by the Court of Judicial Magistrate, Court No.3, Kanpur Nagar. 3. In so far connected-C1 application is concerned, the facts are that the on 13.06.2024 a complaint was lodged by O.P. No.2 against the applicant under Section 138 of N.I. Act, wherein with discharge of a liability, the applicant had drawn a cheque bearing number "020854" of an amount of Rs.1,50,000/- dated 06.05.2024, which on presentation in the bank came to be dishonoured on 07.05.2024 followed by a statutory demand notice and a complaint and thereafter the applicant came to be summoned on 01.08.2024 in Complaint Case no. 49023 of 2024 under Section 138 of N.I. Act. 4. As regards the connected C-2 application is concerned, a complaint came to be lodged by O.P. No.2 on 29.05.2024 with an allegation that with respect to discharge of a liability, the applicant had drawn a cheque bearing "020857" dated 11.03.2024 of Rs.1,50,000/-, which on presentation in the bank twice came to be dishonoured followed a statutory demand notice came to be issued and a complaint on 29.05.2024 and the applicant came to be summoned on 01.08.2024 under Section 138 of N.I. Act in Complaint Case No.43473 of 2024 by the Court of Judicial Magistrate, Court No.3, Kanpur Nagar. 5. Learned counsel for the applicants has submitted that the summoning order cannot be sustained for more than one reason. Firstly, in all the three complaints, which are subject matter of challenge in leading, connected-C1, connected-C2 applications, the O.P. No.2 has alleged that an amount of Rs.1,50,000/- was advanced, against which the cheques stood drawn, which 3 A482 No. 41417 of 2024 were dishonoured in the three complaints in leading, connected-C1 and connected-C3, thus it cannot be a matter of co-incidence that the amounts would be same being Rs.1,50,000/- in all the three cases, as the story so sought to be cooked up by the complainant itself has no legs to stand, particularly when it is not the case of the complainant that the total amount outstanding and due of Rs.4,50,000/- against the three cheques was drawn which were dishonoured. Secondly, the cheques in question stolen and lost and thus lost article information was submitted to the police through the mode of E-thana, a copy whereof is already on record dated 30.05.2022 and further a communication was also made to the bank on 30.05.2022 apprising them regarding theft or an attempt to misutilize these cheques. Submission is that there is no legal enforceable debt or liability so as to invoke the provisions contained under Section 138 of N.I. Act. Argument is that once the information regarding the factum of the cheques being misplaced had been communicated to the bank as well as to the police officials then it shows the bonafide of the applicant. 6. Learned State Law Officer on the other hand submits that whatever might be, the question whether the cheques was lost or missing is a defence, consideration whereof would be required only when the trial commences and would not vitiate the summoning order. 7. Apparently, with respect to dishonouring of a cheque and statutory demand notice came to be issued followed by the complaint and applicant came to be summoned. On a pointed query being raised to the learned counsel for the applicant whether there is any procedural infirmity regarding infraction of the provisions contained under Sections 138 and 142 of the N.I. Act in the leading, connected-C1 and connected-C2 applications, the answer is in negative. Now, a further question arises whether at the stage of