R.S. Dwivedi v. Chandrashekhar Yadav), pending in the Court of Additional Court No

1. Heard Sri Prabhat Kumar Mishra, learned counsel for revisionist as well as learned Additional Government Advocate for the State.

2. By means of present application U/s 482 of Cr.P.C. read with Section 528 B.N.S.S., 2023, the applicant has challenged the entire proceedings in complaint Case No. 73343/2021 U/S 138/142 N.I. Act, 1881 (R.S. Dwivedi Vs. Chandrashekhar Yadav), pending in the Court of Additional Court No. - 1 (N.I.Act), Lucknow as well as summoning order dated 13.12.2021.

3. It has been submitted by learned counsel for applicant that respondent No. 2 had filed a complainant U/S 138/142 N.I. Act stating that respondent No. 2 had entered into an agreement for sale of Plot of land bearing Gata No. 2132 ad-measuring area 2722 sq. ft. situated in Village Bhauli, Near Raitha Road, B.K.T., Lucknow for a considering of Rs. 21,00,000/- on 22.03.2021.

4. It is stated that as a consideration for the said sale, the applicant had given two cheques of Rs. 16 lakhs and Rs. 5 Lakhs. The cheque of Rs. 16 lakhs was issued on 22.05.2021 while Cheque of Rs. 5 Lakhs was issued on 22.07.2021 and the agreement was entered on 22.03.2021. The allegation in the complaint is that the cheque which was given by the applicant for an amount of Rs. 5 lakhs bearing Cheque No. 040394 dated 22.07.2021 on presentation to the bank was returned back to the drawee stating that the payment has been stopped. Subsequently the respondent No. 2 informed the said fact to the applicant who is alleged to have threatened him and even after submission of a legal notice when the amount was not paid the complaint U/S 138 of N.I. Act was filed. The trial court by means of order dated 13.12.2021 after recording the aforesaid facts had issued summons to the applicant. the applicant has appeared before the trial court and obtained bail and is participating in the proceedings before the trial court.

5. After four years of the summons being issued and also the applicant being participating in the proceedings present application U/S 482 of Cr.P.C. has been filed for quashing the entire proceedings only on the ground that no legally enforceable debt exists and accordingly the provision of Section 138 N.I.Act are not fulfilled and hence the proceedings deserves to be quashed by this Court.

6. He further submits that only an agreement to sale was entered into between applicant and respondent No. 2 and even if the applicant has failed to pay the amount does not result in a legally enforceable debt inasmuch as the property has not passed on to the applicant and therefore under the circumstances present application U/S 482 Cr.P.C. deserves to be allowed and the proceedings deserves to be quashed.

7. Learned A.G.A. on the other hand has opposed the present case. He has submitted that once the applicant has put in appearance he can raise all issues relating to his defence before the trial court itself. He further submits that in the complaint preferred by the respondent no. 2, he has specifically stated that possession of the house was transferred to the applicant and accordingly it cannot be said that no right or interest transferred to the applicant on execution of the agreement to sale or that the payment of consideration by two cheques was not against any legally enforceable debt and consequently these would be question of fact which would be subject to consideration by the trial court on evidence being examined accordingly the trial court for dismissal of the present application.

8. Considering the rival submissions, this Court finds that an agreement was entered into between applicant and respondent No. 2 with regard to sale of plot of land bearing Gata No. 2132 ad-measuring area 2722 sq. ft. situated in Village Bhauli, Near Raitha Road, B.K.T., Lucknow against which two cheques were given by the applicant. It is stated that despite the fact that no agreement to sale took place. One of the cheque is bounced and consequently no legally enforceable debt subsists.

9. First issue which falls for consideration whether the applicant has put in appearance before the trial court and has participated for the last four years and whether at this stage interference of this Court U/S 482 of Cr.P.C. can be made. It is noticed that once the applicant has put in appearance before the trial court then he has a liberty to raise all the issues for his defence against the claim of the complainant before the trial court. The applicant has already filed his objections to the claim of the applicant U/S 251 of Cr.P.C. where he has denied all the allegations levelled by the complainant.

10. Once the applicant put in appearance and is contesting the claim before the trial court and the trial court is seized of the issue then before any appropriate order is passed by the trial court this Court would not enter into controversy by entertaining this application U/S 482 of Cr.P.C. The trial court cannot continue at two stages before two different forums. In all the cases which have been referred by the applicant this Court noticed that immediately after summoning orders, the same has been challenged in proceedings U/S 482 CrP.C. which has been entertained and appropriate orders have been passed. Once the applicant has put in appearance before the trial court and also raised all the objections then he will have to await for the findings to be recorded by the trial court and only thereafter assail the said order in case findings recorded are adverse to him.

11. Apart from the above, this Court finds that there is specific allegations in the complaint filed in pursuance of the agreement to sale, the possession of the property was passed on to the applicant. Accordingly, once some consideration in pursuance of the agreement to sale is passed on, it cannot be said that no right or interest has passed on to the petitioner pursuant to the agreement to sale. It has further been noticed that the agreement to sale has not been annexed and consequently terms of the agreement to sale are not before this Court. Accordingly, this Court does not find any infirmity in the proceedings before the trial court nor in the summoning order which has considered all the aspect of the matter as was raised by the complainant in his complaint.

12. Accordingly, for the reasons aforesaid, the present application U/S 482 Cr.P.C. is dismissed,.

13. It is made clear that trial court shall not influence by any of the observations made by this Court in the present case and proceeding in the matter in accordance with law. Order Date :- 14.5.2025 Ravi/ (Alok Mathur, J.) RAVI SHANKAR SRIVASTAV RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

1. Heard Sri Prabhat Kumar Mishra, learned counsel for revisionist as well as learned Additional Government Advocate for the State.

2. By means of present application U/s 482 of Cr.P.C. read with Section 528 B.N.S.S., 2023, the applicant has challenged the entire proceedings in complaint Case No. 73343/2021 U/S 138/142 N.I. Act, 1881 (R.S. Dwivedi Vs. Chandrashekhar Yadav), pending in the Court of Additional Court No. - 1 (N.I.Act), Lucknow as well as summoning order dated 13.12.2021.

3. It has been submitted by learned counsel for applicant that respondent No. 2 had filed a complainant U/S 138/142 N.I. Act stating that respondent No. 2 had entered into an agreement for sale of Plot of land bearing Gata No. 2132 ad-measuring area 2722 sq. ft. situated in Village Bhauli, Near Raitha Road, B.K.T., Lucknow for a considering of Rs. 21,00,000/- on 22.03.2021.

4. It is stated that as a consideration for the said sale, the applicant had given two cheques of Rs. 16 lakhs and Rs. 5 Lakhs. The cheque of Rs. 16 lakhs was issued on 22.05.2021 while Cheque of Rs. 5 Lakhs was issued on 22.07.2021 and the agreement was entered on 22.03.2021. The allegation in the complaint is that the cheque which was given by the applicant for an amount of Rs. 5 lakhs bearing Cheque No. 040394 dated 22.07.2021 on presentation to the bank was returned back to the drawee stating that the payment has been stopped. Subsequently the respondent No. 2 informed the said fact to the applicant who is alleged to have threatened him and even after submission of a legal notice when the amount was not paid the complaint U/S 138 of N.I. Act was filed. The trial court by means of order dated 13.12.2021 after recording the aforesaid facts had issued summons to the applicant. the applicant has appeared before the trial court and obtained bail and is participating in the proceedings before the trial court.

5. After four years of the summons being issued and also the applicant being participating in the proceedings present application U/S 482 of Cr.P.C. has been filed for quashing the entire proceedings only on the ground that no legally enforceable debt exists and accordingly the provision of Section 138 N.I.Act are not fulfilled and hence the proceedings deserves to be quashed by this Court.

6. He further submits that only an agreement to sale was entered into between applicant and respondent No. 2 and even if the applicant has failed to pay the amount does not result in a legally enforceable debt inasmuch as the property has not passed on to the applicant and therefore under the circumstances present application U/S 482 Cr.P.C. deserves to be allowed and the proceedings deserves to be quashed.

7. Learned A.G.A. on the other hand has opposed the present case. He has submitted that once the applicant has put in appearance he can raise all issues relating to his defence before the trial court itself. He further submits that in the complaint preferred by the respondent no. 2, he has specifically stated that possession of the house was transferred to the applicant and accordingly it cannot be said that no right or interest transferred to the applicant on execution of the agreement to sale or that the payment of consideration by two cheques was not against any legally enforceable debt and consequently these would be question of fact which would be subject to consideration by the trial court on evidence being examined accordingly the trial court for dismissal of the present application.

8. Considering the rival submissions, this Court finds that an agreement was entered into between applicant and respondent No. 2 with regard to sale of plot of land bearing Gata No. 2132 ad-measuring area 2722 sq. ft. situated in Village Bhauli, Near Raitha Road, B.K.T., Lucknow against which two cheques were given by the applicant. It is stated that despite the fact that no agreement to sale took place. One of the cheque is bounced and consequently no legally enforceable debt subsists.

9. First issue which falls for consideration whether the applicant has put in appearance before the trial court and has participated for the last four years and whether at this stage interference of this Court U/S 482 of Cr.P.C. can be made. It is noticed that once the applicant has put in appearance before the trial court then he has a liberty to raise all the issues for his defence against the claim of the complainant before the trial court. The applicant has already filed his objections to the claim of the applicant U/S 251 of Cr.P.C. where he has denied all the allegations levelled by the complainant.

10. Once the applicant put in appearance and is contesting the claim before the trial court and the trial court is seized of the issue then before any appropriate order is passed by the trial court this Court would not enter into controversy by entertaining this application U/S 482 of Cr.P.C. The trial court cannot continue at two stages before two different forums. In all the cases which have been referred by the applicant this Court noticed that immediately after summoning orders, the same has been challenged in proceedings U/S 482 CrP.C. which has been entertained and appropriate orders have been passed. Once the applicant has put in appearance before the trial court and also raised all the objections then he will have to await for the findings to be recorded by the trial court and only thereafter assail the said order in case findings recorded are adverse to him.

11. Apart from the above, this Court finds that there is specific allegations in the complaint filed in pursuance of the agreement to sale, the possession of the property was passed on to the applicant. Accordingly, once some consideration in pursuance of the agreement to sale is passed on, it cannot be said that no right or interest has passed on to the petitioner pursuant to the agreement to sale. It has further been noticed that the agreement to sale has not been annexed and consequently terms of the agreement to sale are not before this Court. Accordingly, this Court does not find any infirmity in the proceedings before the trial court nor in the summoning order which has considered all the aspect of the matter as was raised by the complainant in his complaint.

12. Accordingly, for the reasons aforesaid, the present application U/S 482 Cr.P.C. is dismissed,.

13. It is made clear that trial court shall not influence by any of the observations made by this Court in the present case and proceeding in the matter in accordance with law. Order Date :- 14.5.2025 Ravi/ (Alok Mathur, J.) RAVI SHANKAR SRIVASTAV RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench