Bhagauti Prasad Yadav v. Sarita Mishra on

1. Heard Sri Amrendra Nath Tripathi, learned counsel for the applicant as well as learned A.G.A. for the State of U.P.

2. In the light of proposed order notice to opposite party no. 2 is dispensed with.

3. By means of present application under Section 482 Cr.P.C. read with Section 528 of BNSS, the applicant has challenged the order dated 10.04.2023, passed by the Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No. 26, Sultanpur thereby he has summoned the applicant in proceedings under Section 138 of Negotiable Instruments Act, 1881.

4. Brief facts as stated by the applicant are that opposite party no. 2 has filed a complaint under Section 138 of Negotiable Instruments Act against the applicant being Complain Case No. 5041 of 2022 (now changed to Complaint Case No. 5114 of 2023) - Bhagauti Prasad Yadav Vs. Sarita Mishra on 12.01.2022. In the complaint it was stated that the complainant had given an amount of Rs.20,10,000/- (partially in cash and partially in the account) to the applicant in lieu of securing a job to his grandson in railways and it was further stated that husband of applicant is Auditor in Indian Railways. It is stated that the when the applicant failed in securing job to the grand son of the complainant, an agreement was arrived at between them where a cheque bearing Cheque No. 057265 dated 10.11.2021, amounting to Rs.20,10,000/- was given to the complainant, which on presentation was dishonoured and returned back with endorsement dated 18.11.2021 and 14.11.2021 that due to "payment stopped by the drawer". It is further stated that legal notice was sent on 29.12.2021 at the residential address of the applicant, but despite service, said amount was not paid and consequently complaint was filed under Section 138 of the Negotiable Instruments Act.

5. The complainant had adduced evidence under Section 200 Cr.P.C. and the Additional Civil Judge (Senior Division), Sultanpur duly considered the allegations levelled in the complaint as well as statement under Section 200 Cr.P.C., duly recorded the facts and issued summons to the applicant.

6. The applicant has assailed the said order stating that firstly, cause of action has not been disclosed by the complainant in his complaint with regard to the fact as to when service was effected on the applicant and it is only when clear and distinctive date of service is mentioned, complaint can be filed only fifteen days thereafter and not on any date prior to said period.

7. In the complaint no date of service of legal notice has been mentioned and consequently, the said complaint should be premature and the trial Court should have rejected the complaint as offence under Section 138 of Negotiable Instruments Act would not be made out and the complaint should have been rejected on the threshold.

8. The second ground raised by the applicant is that after the statement under Section 202 Cr.P.C. the Magistrate is mandated to conduct inquiry in the case where accused lives outside the territorial limits of jurisdiction of the concerned Magistrate and in the present case clearly without conducting any inquiry under Section 202 Cr.P.C., summoning order has been issued, which is contrary to the provisions and it is stated that same is abuse of process of law inasmuch as, without mentioning cause of action complaint was lodged by the complainant.

9. Learned A.G.A. on the other hand has opposed the application. He submits that perusal of impugned order dated 10.04.2023 would indicate that there is due application of mind by the trial Court inasmuch as all the essential facts have been duly recorded by the Magistrate as narrated in the complaint and what has come forth in the statement under Section 200 Cr.P.C.

10. Heard learned counsel for the parties and perused the record.

11. Considering the rival contentions, it is noticed that as per complaint it was alleged that the complainant had given certain amount for getting employment for his grand son through the husband of applicant, who was employed in the Railways. When the applicant could not secure employment, dispute arose between the parties and the applicant had given cheque no. 057265, dated 10.11.2021, amounting to Rs.20,10,000/-, which on presentation in the bank was returned back after recording that payment had been stopped by the drawer. Legal notice was sent on 24.12.2021 by registered post and according to the applicant the complaint was filed on 12.01.2022. Once letter has been sent by registered post, then there would be presumption of service and there is 15 days mandatory period after the service of legal notice, which gives option to the accused to make good the payment of the amount for which cheque has been dishonoured. There is no doubt with regard to contention of the applicant that offence is constituted only after expiry of fifteen days after service. Neither date of service is recorded in the complaint and the applicant on the other hand had denied service of the registered post. Undoubtedly, presentation of complaint has been made after expiry of fifteen days from the date of legal notice.

12. Accordingly, date of service of notice would be relevant fact which can be considered by the trial Court only after the applicant has put in appearance. In case, there is sufficient material before the trial Court, which thereafter can be duly considered, there is undisputed question of fact and it is only after adducing evidence, fact of service can be demonstrated before the trial Court. But, in case, the complaint had been filed before expiry of fifteen days from the date of issuance of legal notice, then certainly, it would have been limited ground for interference by this Court in the present case, inasmuch as, no complaint could have been filed within the statutory period of fifteen days, but considering the fact that complaint has been filed after approximately ninteen days of issuance of legal notice, the aspect of service became relevant and will have to be considered by the trial Court.

13. Accordingly, in the present proceedings, such finding of fact as sought by the applicant cannot be recorded and hence argument is rejected subject to the fact that petitioner has liberty to raise the same before the trial Court at the appropriate stage.

14. The second ground raised by the applicant is with regard to amended Section 202 Cr.P.C. In the present case, there is no doubt that the Magistrate was not only moved by the allegations levelled in the complaint, but he proceeded to conduct inquiry by examining the complaint himself and recorded statement under Section 200 Cr.P.C. It is only when statement under Section 200 Cr.P.C. is recorded, which was duly considered in the impugned order dated 10.04.2023, it is only after due inquiry made by the Magistrate and after duly considering the evidence which has come on record in the statement under Section 200 Cr.P.C. that he has issued summons.

15. Accordingly, it is not the case where there is absence of inquiry under Section 200 Cr.P.C., accordingly, this Court finds that the trial Court has duly conduced inquiry and applied its mind to the evidence emanating from the said statement, meaning thereby the argument raised by the applicant in this regard is rejected.

16. In the aforesaid circumstances, this Court finds that there was sufficient material available on record for the trial Court to have issued summons, which has been done in accordance with law. Rest of the arguments raised before this Court are merely defense raised by the applicant which could be adequately raised by him at the appropriate stage before the trial Court.

17. Subject to aforesaid observations, present application being devoid of merits is rejected.

18. However, in case applicant appears before the trial Court within next one month, the bailable warrant issued against him shall be kept in abeyance. It is made clear that this Court has made interference only for limited period and after that the trial Court shall pass appropriate orders. Order Date :- 9.4.2025 A. Verma (Alok Mathur, J.) ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Sri Amrendra Nath Tripathi, learned counsel for the applicant as well as learned A.G.A. for the State of U.P.

2. In the light of proposed order notice to opposite party no. 2 is dispensed with.

3. By means of present application under Section 482 Cr.P.C. read with Section 528 of BNSS, the applicant has challenged the order dated 10.04.2023, passed by the Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No. 26, Sultanpur thereby he has summoned the applicant in proceedings under Section 138 of Negotiable Instruments Act, 1881.

4. Brief facts as stated by the applicant are that opposite party no. 2 has filed a complaint under Section 138 of Negotiable Instruments Act against the applicant being Complain Case No. 5041 of 2022 (now changed to Complaint Case No. 5114 of 2023) - Bhagauti Prasad Yadav Vs. Sarita Mishra on 12.01.2022. In the complaint it was stated that the complainant had given an amount of Rs.20,10,000/- (partially in cash and partially in the account) to the applicant in lieu of securing a job to his grandson in railways and it was further stated that husband of applicant is Auditor in Indian Railways. It is stated that the when the applicant failed in securing job to the grand son of the complainant, an agreement was arrived at between them where a cheque bearing Cheque No. 057265 dated 10.11.2021, amounting to Rs.20,10,000/- was given to the complainant, which on presentation was dishonoured and returned back with endorsement dated 18.11.2021 and 14.11.2021 that due to "payment stopped by the drawer". It is further stated that legal notice was sent on 29.12.2021 at the residential address of the applicant, but despite service, said amount was not paid and consequently complaint was filed under Section 138 of the Negotiable Instruments Act.

5. The complainant had adduced evidence under Section 200 Cr.P.C. and the Additional Civil Judge (Senior Division), Sultanpur duly considered the allegations levelled in the complaint as well as statement under Section 200 Cr.P.C., duly recorded the facts and issued summons to the applicant.

6. The applicant has assailed the said order stating that firstly, cause of action has not been disclosed by the complainant in his complaint with regard to the fact as to when service was effected on the applicant and it is only when clear and distinctive date of service is mentioned, complaint can be filed only fifteen days thereafter and not on any date prior to said period.

7. In the complaint no date of service of legal notice has been mentioned and consequently, the said complaint should be premature and the trial Court should have rejected the complaint as offence under Section 138 of Negotiable Instruments Act would not be made out and the complaint should have been rejected on the threshold.

8. The second ground raised by the applicant is that after the statement under Section 202 Cr.P.C. the Magistrate is mandated to conduct inquiry in the case where accused lives outside the territorial limits of jurisdiction of the concerned Magistrate and in the present case clearly without conducting any inquiry under Section 202 Cr.P.C., summoning order has been issued, which is contrary to the provisions and it is stated that same is abuse of process of law inasmuch as, without mentioning cause of action complaint was lodged by the complainant.

9. Learned A.G.A. on the other hand has opposed the application. He submits that perusal of impugned order dated 10.04.2023 would indicate that there is due application of mind by the trial Court inasmuch as all the essential facts have been duly recorded by the Magistrate as narrated in the complaint and what has come forth in the statement under Section 200 Cr.P.C.

10. Heard learned counsel for the parties and perused the record.

11. Considering the rival contentions, it is noticed that as per complaint it was alleged that the complainant had given certain amount for getting employment for his grand son through the husband of applicant, who was employed in the Railways. When the applicant could not secure employment, dispute arose between the parties and the applicant had given cheque no. 057265, dated 10.11.2021, amounting to Rs.20,10,000/-, which on presentation in the bank was returned back after recording that payment had been stopped by the drawer. Legal notice was sent on 24.12.2021 by registered post and according to the applicant the complaint was filed on 12.01.2022. Once letter has been sent by registered post, then there would be presumption of service and there is 15 days mandatory period after the service of legal notice, which gives option to the accused to make good the payment of the amount for which cheque has been dishonoured. There is no doubt with regard to contention of the applicant that offence is constituted only after expiry of fifteen days after service. Neither date of service is recorded in the complaint and the applicant on the other hand had denied service of the registered post. Undoubtedly, presentation of complaint has been made after expiry of fifteen days from the date of legal notice.

12. Accordingly, date of service of notice would be relevant fact which can be considered by the trial Court only after the applicant has put in appearance. In case, there is sufficient material before the trial Court, which thereafter can be duly considered, there is undisputed question of fact and it is only after adducing evidence, fact of service can be demonstrated before the trial Court. But, in case, the complaint had been filed before expiry of fifteen days from the date of issuance of legal notice, then certainly, it would have been limited ground for interference by this Court in the present case, inasmuch as, no complaint could have been filed within the statutory period of fifteen days, but considering the fact that complaint has been filed after approximately ninteen days of issuance of legal notice, the aspect of service became relevant and will have to be considered by the trial Court.

13. Accordingly, in the present proceedings, such finding of fact as sought by the applicant cannot be recorded and hence argument is rejected subject to the fact that petitioner has liberty to raise the same before the trial Court at the appropriate stage.

14. The second ground raised by the applicant is with regard to amended Section 202 Cr.P.C. In the present case, there is no doubt that the Magistrate was not only moved by the allegations levelled in the complaint, but he proceeded to conduct inquiry by examining the complaint himself and recorded statement under Section 200 Cr.P.C. It is only when statement under Section 200 Cr.P.C. is recorded, which was duly considered in the impugned order dated 10.04.2023, it is only after due inquiry made by the Magistrate and after duly considering the evidence which has come on record in the statement under Section 200 Cr.P.C. that he has issued summons.

15. Accordingly, it is not the case where there is absence of inquiry under Section 200 Cr.P.C., accordingly, this Court finds that the trial Court has duly conduced inquiry and applied its mind to the evidence emanating from the said statement, meaning thereby the argument raised by the applicant in this regard is rejected.

16. In the aforesaid circumstances, this Court finds that there was sufficient material available on record for the trial Court to have issued summons, which has been done in accordance with law. Rest of the arguments raised before this Court are merely defense raised by the applicant which could be adequately raised by him at the appropriate stage before the trial Court.

17. Subject to aforesaid observations, present application being devoid of merits is rejected.

18. However, in case applicant appears before the trial Court within next one month, the bailable warrant issued against him shall be kept in abeyance. It is made clear that this Court has made interference only for limited period and after that the trial Court shall pass appropriate orders. Order Date :- 9.4.2025 A. Verma (Alok Mathur, J.) ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench