High Court · 2025

applicant has challenged the validity of order dated 04.12.2024 passed by learned Additional Court No. 5, Lucknow in Case No. 74936 of 2023, under Section 138 of the Negotiable Instruments Act, 1881.

3. The facts in brief as stated by the applicant are that a complaint was registered by opposite party no. 2 against the applicant as well as one Abhilasha Enterprises stating that opposite party no. 2 and the complainant had entered into an agreement to sell on 15.10.2016 wherein it was agreed that one No. Flat 102, First Floor Shekhpura Kasaila Narayan Nagar, Gomti Nagar, Lucknow would be sold to the complainant for consideration of Rs.38,00,000/-. It has been alleged that opposite party no. 2 had received Rs.38,00,000/- as consideration against the said flat but had failed to sell the flat to the complainant and subsequently had issued a cheque No. 226750003 dated 06.05.2023 for Rs.38,00,000/- drawn on Bandhan Bank/Elite Lalbagh, Lucknow in favour of complainant. On deposition of the said cheque for clearance and encashment, the same was dishonoured and the said amount remained unpaid. The reason for dishonoured was certified as insufficient funds, which certificate was received by the complainant on 22.05.2023. Subsequently a legal notice was sent by a registered post on 02.06.2023, which was returned back as there is no such office in that name and consequently, the said complaint was filed.

4. It is on the said complaint, the impugned summoning order dated 06.12.2023 has been issued. The trial court has duly looked into entire chain of events as narrated in the complaint had issued the summons. Against the summoning order dated

06.12.2023, the applicant had preferred an Application under Section 482 No. 7638 of 2024, which was disposed of by giving benefit of judgment of Hon'ble Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another reported in (2022) 10 SCC 51 and also granted liberty to the applicant to move discharge application, which shall be decided in accordance with law.

5. It is in pursuance of direction of this Court dated 03.10.2024, the applicant had preferred an application for discharge, which has been rejected by means of impugned order dated

04.12.2024. In his application for discharge, the applicant has stated that the complaint has been filed on false and fictitious grounds and also denied the agreement entered into with the complainant. It was further denied that the applicant had ever received the said consideration and had setup a totally different narration of facts.

6. It is on these grounds, he prayed for discharge of the applicant in the said proceedings. The trial court had duly considered the application for discharge and found that all the necessary ingredients for invocation of Section 138 of the Negotiable Instruments Act, 1881 were available and also that the applicant had given a cheque in favour of the complainant of Rs.38,00,000/- and the question as to whether the signature of the applicant is existing on the said cheque is a question of fact and the same would be looked into at the stage of trial. The trial court also recorded its satisfaction that notices have been duly served and accordingly do not find any ground for interference and the same fact, which has been urged before the trial court, has been urged before this Court.

7. This Court has also considered the arguments raised by learned counsel for applicant and also perused the record.

8. This Court finds that the trial court has duly considered all the grounds raised by the applicant in his application for discharge and further finds that when a query was made to the learned counsel for applicant to indicate as to the provision under which the said application has been moved by him, he fairly submits that there is no provision for discharge in a summary proceedings under Section 138 of the Negotiable Instruments Act, 1881. The said application was preferred by him in pursuance of the direction of this Court dated 03.10.2024 passed in Application under Section 482 No. 7638 of 2024.

9. On the other hand, learned A.G.A. for the State has opposed the said application under Section 482 Cr.P.C. and submits that there is no infirmity in the impugned order passed by the trial court. Apart from the above, it is stated that application for discharge itself preferred by the applicant is not maintainable and prayed for dismissal of the said application under Section 482 Cr.P.C. In support of his submission, learned A.G.A. has relied upon a judgment of Supreme Court in Suo Motu Writ Petition (Crl.) No. 2 of 2020 in Re: Expeditious Trial of Cases under Section 138 of N.I. Act, 1881.

10. A coordinate Bench of this Court in the case of Neha Goyal Vs. State of U.P. and another passed in Criminal Revision No. 5540 of 2023, has also settled the issue of nature of Section 138 of the Negotiable Instruments Act, 1881. The relevant portion of the said judgment is quoted below:- "14. Section 138 NI Act provides as under:- "138. Dishonour of cheque for insufficiency, etc., of funds in the account.? Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:Provided that nothing contained in this section shall apply unless? (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."

15. Section 138 NI Act provides punishment term may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both. Thus, from point of view of punishment provided by the Act, the offence is of summoning nature.

16. Section 143 of the Act provides as under:- "143. Power of Court to try cases summarily.? (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:"

17. Bare perusal of the above statutory provision as well as angle of punishment provided for the offence shows that the offence is nature of summery trial. It may be tried in summon manner. No such orders has been passed by the trial court, therefore, application for discharge in the case under section 138 N.I. Act is not maintainable and I find no irregularity and illegality in the impugned order passed by the trial court wherein the prayer for discharge has been found to be not maintainable."

11. It is noticed that the application for discharge has been moved by the applicant only in pursuance of the order of this Court dated 03.102.024 but perusal of the said order indicate that liberty was given to the applicant to move application for discharge in accordance with law.

12. It is needless to say that no right has sought to be created in favour of any person unless the same is existing in law. In absence of any provision for discharge in summary proceedings, no such application is maintainable and no provision or judgment could be indicated by learned counsel for applicant showing that such an application was maintainable.

13. In light of the above, this Court finds that adequate reasons have been given by the trial court for rejection of the discharge application. Accordingly, this Court is of the considered opinion that such an application is not maintainable.

14. Accordingly, this application under Section 482 Cr.P.C. being devoid of merits is hereby dismissed.. (Alok Mathur, J.) Order Date :- 3.4.2025 Virendra VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench

applicant has challenged the validity of order dated 04.12.2024 passed by learned Additional Court No. 5, Lucknow in Case No. 74936 of 2023, under Section 138 of the Negotiable Instruments Act, 1881.

3. The facts in brief as stated by the applicant are that a complaint was registered by opposite party no. 2 against the applicant as well as one Abhilasha Enterprises stating that opposite party no. 2 and the complainant had entered into an agreement to sell on 15.10.2016 wherein it was agreed that one No. Flat 102, First Floor Shekhpura Kasaila Narayan Nagar, Gomti Nagar, Lucknow would be sold to the complainant for consideration of Rs.38,00,000/-. It has been alleged that opposite party no. 2 had received Rs.38,00,000/- as consideration against the said flat but had failed to sell the flat to the complainant and subsequently had issued a cheque No. 226750003 dated 06.05.2023 for Rs.38,00,000/- drawn on Bandhan Bank/Elite Lalbagh, Lucknow in favour of complainant. On deposition of the said cheque for clearance and encashment, the same was dishonoured and the said amount remained unpaid. The reason for dishonoured was certified as insufficient funds, which certificate was received by the complainant on 22.05.2023. Subsequently a legal notice was sent by a registered post on 02.06.2023, which was returned back as there is no such office in that name and consequently, the said complaint was filed.

4. It is on the said complaint, the impugned summoning order dated 06.12.2023 has been issued. The trial court has duly looked into entire chain of events as narrated in the complaint had issued the summons. Against the summoning order dated

06.12.2023, the applicant had preferred an Application under Section 482 No. 7638 of 2024, which was disposed of by giving benefit of judgment of Hon'ble Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another reported in (2022) 10 SCC 51 and also granted liberty to the applicant to move discharge application, which shall be decided in accordance with law.

5. It is in pursuance of direction of this Court dated 03.10.2024, the applicant had preferred an application for discharge, which has been rejected by means of impugned order dated

04.12.2024. In his application for discharge, the applicant has stated that the complaint has been filed on false and fictitious grounds and also denied the agreement entered into with the complainant. It was further denied that the applicant had ever received the said consideration and had setup a totally different narration of facts.

6. It is on these grounds, he prayed for discharge of the applicant in the said proceedings. The trial court had duly considered the application for discharge and found that all the necessary ingredients for invocation of Section 138 of the Negotiable Instruments Act, 1881 were available and also that the applicant had given a cheque in favour of the complainant of Rs.38,00,000/- and the question as to whether the signature of the applicant is existing on the said cheque is a question of fact and the same would be looked into at the stage of trial. The trial court also recorded its satisfaction that notices have been duly served and accordingly do not find any ground for interference and the same fact, which has been urged before the trial court, has been urged before this Court.

7. This Court has also considered the arguments raised by learned counsel for applicant and also perused the record.

8. This Court finds that the trial court has duly considered all the grounds raised by the applicant in his application for discharge and further finds that when a query was made to the learned counsel for applicant to indicate as to the provision under which the said application has been moved by him, he fairly submits that there is no provision for discharge in a summary proceedings under Section 138 of the Negotiable Instruments Act, 1881. The said application was preferred by him in pursuance of the direction of this Court dated 03.10.2024 passed in Application under Section 482 No. 7638 of 2024.

9. On the other hand, learned A.G.A. for the State has opposed the said application under Section 482 Cr.P.C. and submits that there is no infirmity in the impugned order passed by the trial court. Apart from the above, it is stated that application for discharge itself preferred by the applicant is not maintainable and prayed for dismissal of the said application under Section 482 Cr.P.C. In support of his submission, learned A.G.A. has relied upon a judgment of Supreme Court in Suo Motu Writ Petition (Crl.) No. 2 of 2020 in Re: Expeditious Trial of Cases under Section 138 of N.I. Act, 1881.

10. A coordinate Bench of this Court in the case of Neha Goyal Vs. State of U.P. and another passed in Criminal Revision No. 5540 of 2023, has also settled the issue of nature of Section 138 of the Negotiable Instruments Act, 1881. The relevant portion of the said judgment is quoted below:- "14. Section 138 NI Act provides as under:- "138. Dishonour of cheque for insufficiency, etc., of funds in the account.? Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:Provided that nothing contained in this section shall apply unless? (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."

15. Section 138 NI Act provides punishment term may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both. Thus, from point of view of punishment provided by the Act, the offence is of summoning nature.

16. Section 143 of the Act provides as under:- "143. Power of Court to try cases summarily.? (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:"

17. Bare perusal of the above statutory provision as well as angle of punishment provided for the offence shows that the offence is nature of summery trial. It may be tried in summon manner. No such orders has been passed by the trial court, therefore, application for discharge in the case under section 138 N.I. Act is not maintainable and I find no irregularity and illegality in the impugned order passed by the trial court wherein the prayer for discharge has been found to be not maintainable."

11. It is noticed that the application for discharge has been moved by the applicant only in pursuance of the order of this Court dated 03.102.024 but perusal of the said order indicate that liberty was given to the applicant to move application for discharge in accordance with law.

12. It is needless to say that no right has sought to be created in favour of any person unless the same is existing in law. In absence of any provision for discharge in summary proceedings, no such application is maintainable and no provision or judgment could be indicated by learned counsel for applicant showing that such an application was maintainable.

13. In light of the above, this Court finds that adequate reasons have been given by the trial court for rejection of the discharge application. Accordingly, this Court is of the considered opinion that such an application is not maintainable.

14. Accordingly, this application under Section 482 Cr.P.C. being devoid of merits is hereby dismissed.. (Alok Mathur, J.) Order Date :- 3.4.2025 Virendra VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench