State Of U.P. And Another vs Party(s)

1. Heard Sri Shreshtha Srivastava and Km. Nishtha Pandey, learned counsel for the applicant, Sri Rao Narendra Singh, learned AGA for the State and Shri Chandra Bhushan, learned counsel for opposite party no.2.

2. This application has been filed seeking quashing of the summoning order dated 02.01.2020 as well as non-bailable warrant dated 10.02.2021 and bailable warrant 28.02.2020. Further prayer of quashing the proceedings of Complaint Case No. 6709 of 2019, under Sections 138 of Negotiable Instruments Act, 1881 (in short "NI Act"), pending in the Court of Additional Court No.9, Lucknow (in short "trial Court") has been sought.

3. It is a case of the applicant that the case under Section 138 of NI Act has been instituted by opposite party no.2 against the applicant, which is an abuse of process of law inasmuch as opposite party no.2 is pursuing the Complaint Case under Section 138 of NI Act in respect of a cheque allegedly issued by the applicant for which the applicant has filed an FIR dated 13.11.2019 against opposite party no.2, under Sections 379, 504, 506 of Indian Penal Code registered as Case Crime No. 0643 of 2019 at Police Station - Wazirganj, District - Lucknow.

4. Learned counsels for the applicant have submitted that in the said FIR, 2 A482 No. 2915 of 2022 the charge-sheet has been filed against opposite party no.2 and cognizance has been taken by the trial Court on 14.03.2022 on the basis of charge-sheet.

5. It has been further submitted that the applicant is owner of one-fifth portion bearing Khasra Nos. 174, 175, 188, 190, 191, 195, 199, 200, 201, 202, 203, 207, 208, 255, 257 and 258, measuring 34,000 sq.ft., situated at Mohalla Mohini Purwa, Ward Husainabad, District - Lucknow along with other co-sharers.

6. It has been further submitted that on 30.03.2019, the applicant had executed the power of attorney in favour of opposite party no.2 and the same was cancelled on 16.05.2019 in the Office of Sub-Registrar.

7. It has been further submitted that the cheque was stolen for which the application was moved before the Station House Officer of concerned Police Station on 17.04.2019 but the FIR was lodged on 13.11.2019.

8. It has been further submitted that a civil dispute is also pending pertaining to power of attorney between the parties and once the civil dispute is pending and in the criminal case, opposite party no.2 is accused, therefore, presumption should be drawn against the opposite party no.2 and the proceedings of Section 138 of NI Act should be dropped.

9. It has been further submitted that the complaint has been filed by opposite party no.2 on 09.08.2019 on which summon has been issued without application of mind and without looking into the relevant material on record.

10. Learned counsels for the applicant have relied on the paragraphs 13 and 14 of the judgment passed by Hon'ble Supreme Court in the case of Bhagat Ram v. State of Rajasthan, (1972) 2 SCC 466.

11. On the other hand, Shri Chandra Bhushan, learned counsel for opposite party no.2 has submitted that the cheque was presented on

18.06.2019 which was dishonored, thereafter, legal notice was given on

17.07.2019 and the complaint was filed within time. 3 A482 No. 2915 of 2022

12. He has submitted that the NI Act is a special act which has been enacted by the Parliament and Section 138 of NI Act has got overriding effect and if any FIR has been lodged it does not mean that he applicant may not be absolved from his liability.

13. Sri Rao Narendra Singh, learned AGA for the State submits that the legal notice was given to the applicant in the month of July, 2019 itself but the same was not refuted and it appears that later on the applicant has lodged the FIR on 13.11.2019, which is a subsequent act. Thus, the applicant could not be discharged from his liability.

14. He has also submitted that the applicant had issued cheque in favour of the opposite party no.2 and the onus of proving that the cheque was not in discharge of any debt or other liability is on the applicant-drawer of the cheque and this position has been settled in the judgment passed by Hon'ble Supreme Court in the case of Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197.

15. After going through the records as well as the statement under Section 200 Cr.P.C. it is evident that the alleged instrument has been issued by the applicant in favour of opposite party no.2 on 18.06.2019 and the legal notice was given, thereafter, the application has been filed within time.

16. For the sake of convenience, Section 138 of NI Act is quoted below :- "Section 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 provision 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: 4 A482 No. 2915 of 2022 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. Explanation.-- For the purposes of this section, debt of other liability means a legally enforceable debt or other liability."

17. The record reveals that the cheque has been presented which is allegedly signed by the applicant and the same was dishonored and the Bank has given necessary endorsement and the legal notice has been given within time and the complaint has been filed then the argument that the charge-sheet against the opposite party no.2 has been filed in a criminal case, therefore, the complaint is liable to be quashed is not acceptable because NI Act is an Act of Parliament, which is a special enactment to deal with the law relating to promissory notes, bills of exchange and cheques. According to Section 138 of NI Act, if 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 provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to 5 A482 No. 2915 of 2022 twice the amount of the cheque, or with both. The trial Court, while issuing summon, has applied its mind after going through the statement under Section 200 Cr.P.C. and the complaint. There is no illegality and infirmity in the summoning order, therefore, the application devoid of merits and is, accordingly, rejected. Interim order stands vacated.

18. It is made clear that the trial Court will not be influenced by any observation made by this Court in this order. November 20, 2025 Mohit Singh/- (Brij Raj Singh,J.) MOHIT SINGH High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Sri Shreshtha Srivastava and Km. Nishtha Pandey, learned counsel for the applicant, Sri Rao Narendra Singh, learned AGA for the State and Shri Chandra Bhushan, learned counsel for opposite party no.2.

2. This application has been filed seeking quashing of the summoning order dated 02.01.2020 as well as non-bailable warrant dated 10.02.2021 and bailable warrant 28.02.2020. Further prayer of quashing the proceedings of Complaint Case No. 6709 of 2019, under Sections 138 of Negotiable Instruments Act, 1881 (in short "NI Act"), pending in the Court of Additional Court No.9, Lucknow (in short "trial Court") has been sought.

3. It is a case of the applicant that the case under Section 138 of NI Act has been instituted by opposite party no.2 against the applicant, which is an abuse of process of law inasmuch as opposite party no.2 is pursuing the Complaint Case under Section 138 of NI Act in respect of a cheque allegedly issued by the applicant for which the applicant has filed an FIR dated 13.11.2019 against opposite party no.2, under Sections 379, 504, 506 of Indian Penal Code registered as Case Crime No. 0643 of 2019 at Police Station - Wazirganj, District - Lucknow.

4. Learned counsels for the applicant have submitted that in the said FIR, 2 A482 No. 2915 of 2022 the charge-sheet has been filed against opposite party no.2 and cognizance has been taken by the trial Court on 14.03.2022 on the basis of charge-sheet.

5. It has been further submitted that the applicant is owner of one-fifth portion bearing Khasra Nos. 174, 175, 188, 190, 191, 195, 199, 200, 201, 202, 203, 207, 208, 255, 257 and 258, measuring 34,000 sq.ft., situated at Mohalla Mohini Purwa, Ward Husainabad, District - Lucknow along with other co-sharers.

6. It has been further submitted that on 30.03.2019, the applicant had executed the power of attorney in favour of opposite party no.2 and the same was cancelled on 16.05.2019 in the Office of Sub-Registrar.

7. It has been further submitted that the cheque was stolen for which the application was moved before the Station House Officer of concerned Police Station on 17.04.2019 but the FIR was lodged on 13.11.2019.

8. It has been further submitted that a civil dispute is also pending pertaining to power of attorney between the parties and once the civil dispute is pending and in the criminal case, opposite party no.2 is accused, therefore, presumption should be drawn against the opposite party no.2 and the proceedings of Section 138 of NI Act should be dropped.

9. It has been further submitted that the complaint has been filed by opposite party no.2 on 09.08.2019 on which summon has been issued without application of mind and without looking into the relevant material on record.

10. Learned counsels for the applicant have relied on the paragraphs 13 and 14 of the judgment passed by Hon'ble Supreme Court in the case of Bhagat Ram v. State of Rajasthan, (1972) 2 SCC 466.

11. On the other hand, Shri Chandra Bhushan, learned counsel for opposite party no.2 has submitted that the cheque was presented on

18.06.2019 which was dishonored, thereafter, legal notice was given on

17.07.2019 and the complaint was filed within time. 3 A482 No. 2915 of 2022

12. He has submitted that the NI Act is a special act which has been enacted by the Parliament and Section 138 of NI Act has got overriding effect and if any FIR has been lodged it does not mean that he applicant may not be absolved from his liability.

13. Sri Rao Narendra Singh, learned AGA for the State submits that the legal notice was given to the applicant in the month of July, 2019 itself but the same was not refuted and it appears that later on the applicant has lodged the FIR on 13.11.2019, which is a subsequent act. Thus, the applicant could not be discharged from his liability.

14. He has also submitted that the applicant had issued cheque in favour of the opposite party no.2 and the onus of proving that the cheque was not in discharge of any debt or other liability is on the applicant-drawer of the cheque and this position has been settled in the judgment passed by Hon'ble Supreme Court in the case of Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197.

15. After going through the records as well as the statement under Section 200 Cr.P.C. it is evident that the alleged instrument has been issued by the applicant in favour of opposite party no.2 on 18.06.2019 and the legal notice was given, thereafter, the application has been filed within time.

16. For the sake of convenience, Section 138 of NI Act is quoted below :- "Section 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 provision 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: 4 A482 No. 2915 of 2022 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. Explanation.-- For the purposes of this section, debt of other liability means a legally enforceable debt or other liability."

17. The record reveals that the cheque has been presented which is allegedly signed by the applicant and the same was dishonored and the Bank has given necessary endorsement and the legal notice has been given within time and the complaint has been filed then the argument that the charge-sheet against the opposite party no.2 has been filed in a criminal case, therefore, the complaint is liable to be quashed is not acceptable because NI Act is an Act of Parliament, which is a special enactment to deal with the law relating to promissory notes, bills of exchange and cheques. According to Section 138 of NI Act, if 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 provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to 5 A482 No. 2915 of 2022 twice the amount of the cheque, or with both. The trial Court, while issuing summon, has applied its mind after going through the statement under Section 200 Cr.P.C. and the complaint. There is no illegality and infirmity in the summoning order, therefore, the application devoid of merits and is, accordingly, rejected. Interim order stands vacated.

18. It is made clear that the trial Court will not be influenced by any observation made by this Court in this order. November 20, 2025 Mohit Singh/- (Brij Raj Singh,J.) MOHIT SINGH High Court of Judicature at Allahabad, Lucknow Bench