State of U.P. and Another vs Party(s)

1. Heard learned counsel for the applicant, learned AGA for the State and learned counsel for opposite party no.2.

2. Instant application under Section 482 Cr.P.C. has been filed by the applicant with prayer for quashing the entire proceedings of Complaint Case No. 2743/2012, under Section 138 of Negotiable Instruments Act, 1881 (in short "NI, Act"), Police Station Aliganj, Lucknow as well as summoning order dated 30.10.2012 passed by the A.C.J.M-I Court No.25, Lucknow and order dated 25.01.2019.

3. It has been submitted by learned counsel for applicant that opposite party no.2 with the help of family members and other relatives was able to arrange Rs.15,00,000/- and the same was given to the applicant on 25.07.2011.

4. He has further submitted that Rs.10,00,000/- was also arranged on the same date which was handed over to the applicant on 25.07.2011.

5. He has further submitted that Rs.1,20,000/- was borrowed by the applicant in the month of March, 2008 from opposite party no.2 and Rs.1,45,000/- was returned along with interest by the applicant to opposite party no.2 till the month of March, 2009.

6. He has further submitted that mandatory provision of section 204(2) Cr.P.C. provides "No summons or warrant shall be issued against the accused under Sub-Section (1) until a list of the prosecution witnesses has been filed." and no list of prosecution witnesses has been filed, thus, the complaint is not maintainable.

7. He has further submitted that application seeking discharge under NI 2 A482 No. 5388 of 2019 Act is also maintainable and he has relied on para 17 of judgment of Hon'ble Supreme Court passed in Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424.

8. On the other hand, learned counsel for opposite party no.2 has submitted that the applicant had given cheque No. 723086 dated 14.04.2012 of Rs.15,00,000/- and opposite party no.2/complainant deposited the said cheque in the Bank, however, the same was returned with memo dated 17.04.2012 with remarks "funds insufficient", legal notice on thereafter, opposite party no.2/complainant sent 30.04.2012 through his counsel which is presumed to be served on 01.05.2012. The complaint has been filed within time i.e. on 05.06.2012.

9. It has been further submitted by learned counsel for opposite party no.2 that there is no illegality and infirmity in the summons issued by the trial Court.

10. He has further submitted that so far application seeking discharge is concerned, it is not maintainable under proceedings under Section 138 of NI Act.

11. He has relied on the judgments of Hon'ble Supreme in the case of Expeditious Trial of Cases Under Section 138 of NI Act, 1881, In re, (2021) 16 SCC 116 and co-ordinate Bench of this at Allahabad in the case of Jai Prakash Goyal v. State of U.P., 2024 SCC OnLine All 777.

12. Paras 9, 10 and 11 of the judgment in the case of Jai Prakash Goyal(supra) is as under :- "9. The Hon'ble Apex Court in the case of Re: Expeditious Trial of Case u/s 138 N.I. Act; (2021) 16 SCC 116 observed in para 24 that Magistrate should record reason while converting the trial of complaint case under Section 138 N.I. Act from summary trial to summon trial and it was also observed judgement of Adalat Prasad another (supra) and Subramanium Sethuraman vs State of Maharashtra; (2004) 13 SCC 324 are confirmed. It was also observed that discharge application filed under Section 258 Cr.P.C. is not maintainable in the proceeding of complaint case under Section 138 N.I. Act. For the ready reference para 24 of the Re: Expeditious Trial of Case u/s 138 N.I. Act (supra) is being quoted hereinunder; "24. The upshot of the above discussion leads us to the following conclusions: 3 A482 No. 5388 of 2019 1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial. 2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court. 3) For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses. 4) We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code. 5) The High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint under Section 138 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction. 6) Judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) have interpreted the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court's notice that it lacks jurisdiction to try the complaint. 7) Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in Meters and Instruments (supra) do not lay down correct law. To conclusively deal with this aspect, amendment to the Act 4 A482 No. 5388 of 2019 empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021. 8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee."

10. From the above analysis as well as law laid down by the Apex Court, it is clear that unless proceeding of complaint case under Section 138 N.I. Act specifically converted into summon case or into trial case then the provision of summon case or warrant case cannot be strictly applied in the proceeding under Section 138 N.I. Act. In the present case, Magistrate has not passed any order for converting the trial of impugned proceeding from summary trial into warrant case. Once it is established that provisions of warrant case are not applicable then question of applicability under Section 245 Cr.P.C. regarding discharge of accused does not arise.

11. This Court also held that discharge application under Section 258 Cr.P.C. is also not maintainable as that section applies where summons case instituted otherwise than upon complaint, but proceeding under Section 138 N.I. Act instituted on the basis of complaint. Hon'ble Apex Court in the case of Re: Expeditious Trial of Case u/s 138 N.I. Act (supra) already clarified this legal position."

13. He has further submitted that judgments of Hon'ble Supreme Court as well as this Court indicate that under Section 138 of NI Act, the application seeking discharge is not maintainable.

14. Heard submissions of learned counsel for the rival parties.

15. After going through the record, I find that the cheque was issue in favour of opposite party no.2 on 14.04.2012 and the same was dishonored on 17.04.2012 with remark "fund insufficient", thereafter, the opposite party no.2/complainant sent legal notice on 30.04.2012 and the complaint was filed on 05.06.2012, there is no illegality and infirmity in the 5 A482 No. 5388 of 2019 summons issued by the trial Court. Submission of learned counsel for the applicant regarding discharge is also to be seen by this Court in perspective of the judgment of Hon'ble Supreme Court in Expeditious Trial of Cases Under Section 138 of NI Act, 1881, In re, (supra) as well as the judgment of this Court in Jai Prakash Goyal(supra) wherein it has been held that application seeking discharge under Section 138 of NI Act is not maintainable. It is also to be observed that the judgment in the case of Bhushan Kumar (supra) relied upon by learned counsel for the applicant is not applicable in the present case for the reason that the facts and circumstances of said case does not pertain to proceedings under Section 138 of NI Act.

17. In view of aforesaid aspect, the application is devoid of merits and is, accordingly, rejected. Interim order stands vacated. November 27, 2025 Mohit Singh/- (Brij Raj Singh,J.) MOHIT SINGH High Court of Judicature at Allahabad, Lucknow Bench

1. Heard learned counsel for the applicant, learned AGA for the State and learned counsel for opposite party no.2.

2. Instant application under Section 482 Cr.P.C. has been filed by the applicant with prayer for quashing the entire proceedings of Complaint Case No. 2743/2012, under Section 138 of Negotiable Instruments Act, 1881 (in short "NI, Act"), Police Station Aliganj, Lucknow as well as summoning order dated 30.10.2012 passed by the A.C.J.M-I Court No.25, Lucknow and order dated 25.01.2019.

3. It has been submitted by learned counsel for applicant that opposite party no.2 with the help of family members and other relatives was able to arrange Rs.15,00,000/- and the same was given to the applicant on 25.07.2011.

4. He has further submitted that Rs.10,00,000/- was also arranged on the same date which was handed over to the applicant on 25.07.2011.

5. He has further submitted that Rs.1,20,000/- was borrowed by the applicant in the month of March, 2008 from opposite party no.2 and Rs.1,45,000/- was returned along with interest by the applicant to opposite party no.2 till the month of March, 2009.

6. He has further submitted that mandatory provision of section 204(2) Cr.P.C. provides "No summons or warrant shall be issued against the accused under Sub-Section (1) until a list of the prosecution witnesses has been filed." and no list of prosecution witnesses has been filed, thus, the complaint is not maintainable.

7. He has further submitted that application seeking discharge under NI 2 A482 No. 5388 of 2019 Act is also maintainable and he has relied on para 17 of judgment of Hon'ble Supreme Court passed in Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424.

8. On the other hand, learned counsel for opposite party no.2 has submitted that the applicant had given cheque No. 723086 dated 14.04.2012 of Rs.15,00,000/- and opposite party no.2/complainant deposited the said cheque in the Bank, however, the same was returned with memo dated 17.04.2012 with remarks "funds insufficient", legal notice on thereafter, opposite party no.2/complainant sent 30.04.2012 through his counsel which is presumed to be served on 01.05.2012. The complaint has been filed within time i.e. on 05.06.2012.

9. It has been further submitted by learned counsel for opposite party no.2 that there is no illegality and infirmity in the summons issued by the trial Court.

10. He has further submitted that so far application seeking discharge is concerned, it is not maintainable under proceedings under Section 138 of NI Act.

11. He has relied on the judgments of Hon'ble Supreme in the case of Expeditious Trial of Cases Under Section 138 of NI Act, 1881, In re, (2021) 16 SCC 116 and co-ordinate Bench of this at Allahabad in the case of Jai Prakash Goyal v. State of U.P., 2024 SCC OnLine All 777.

12. Paras 9, 10 and 11 of the judgment in the case of Jai Prakash Goyal(supra) is as under :- "9. The Hon'ble Apex Court in the case of Re: Expeditious Trial of Case u/s 138 N.I. Act; (2021) 16 SCC 116 observed in para 24 that Magistrate should record reason while converting the trial of complaint case under Section 138 N.I. Act from summary trial to summon trial and it was also observed judgement of Adalat Prasad another (supra) and Subramanium Sethuraman vs State of Maharashtra; (2004) 13 SCC 324 are confirmed. It was also observed that discharge application filed under Section 258 Cr.P.C. is not maintainable in the proceeding of complaint case under Section 138 N.I. Act. For the ready reference para 24 of the Re: Expeditious Trial of Case u/s 138 N.I. Act (supra) is being quoted hereinunder; "24. The upshot of the above discussion leads us to the following conclusions: 3 A482 No. 5388 of 2019 1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial. 2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court. 3) For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses. 4) We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code. 5) The High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint under Section 138 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction. 6) Judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) have interpreted the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court's notice that it lacks jurisdiction to try the complaint. 7) Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in Meters and Instruments (supra) do not lay down correct law. To conclusively deal with this aspect, amendment to the Act 4 A482 No. 5388 of 2019 empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021. 8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee."

10. From the above analysis as well as law laid down by the Apex Court, it is clear that unless proceeding of complaint case under Section 138 N.I. Act specifically converted into summon case or into trial case then the provision of summon case or warrant case cannot be strictly applied in the proceeding under Section 138 N.I. Act. In the present case, Magistrate has not passed any order for converting the trial of impugned proceeding from summary trial into warrant case. Once it is established that provisions of warrant case are not applicable then question of applicability under Section 245 Cr.P.C. regarding discharge of accused does not arise.

11. This Court also held that discharge application under Section 258 Cr.P.C. is also not maintainable as that section applies where summons case instituted otherwise than upon complaint, but proceeding under Section 138 N.I. Act instituted on the basis of complaint. Hon'ble Apex Court in the case of Re: Expeditious Trial of Case u/s 138 N.I. Act (supra) already clarified this legal position."

13. He has further submitted that judgments of Hon'ble Supreme Court as well as this Court indicate that under Section 138 of NI Act, the application seeking discharge is not maintainable.

14. Heard submissions of learned counsel for the rival parties.

15. After going through the record, I find that the cheque was issue in favour of opposite party no.2 on 14.04.2012 and the same was dishonored on 17.04.2012 with remark "fund insufficient", thereafter, the opposite party no.2/complainant sent legal notice on 30.04.2012 and the complaint was filed on 05.06.2012, there is no illegality and infirmity in the 5 A482 No. 5388 of 2019 summons issued by the trial Court. Submission of learned counsel for the applicant regarding discharge is also to be seen by this Court in perspective of the judgment of Hon'ble Supreme Court in Expeditious Trial of Cases Under Section 138 of NI Act, 1881, In re, (supra) as well as the judgment of this Court in Jai Prakash Goyal(supra) wherein it has been held that application seeking discharge under Section 138 of NI Act is not maintainable. It is also to be observed that the judgment in the case of Bhushan Kumar (supra) relied upon by learned counsel for the applicant is not applicable in the present case for the reason that the facts and circumstances of said case does not pertain to proceedings under Section 138 of NI Act.

17. In view of aforesaid aspect, the application is devoid of merits and is, accordingly, rejected. Interim order stands vacated. November 27, 2025 Mohit Singh/- (Brij Raj Singh,J.) MOHIT SINGH High Court of Judicature at Allahabad, Lucknow Bench