Saurabh Tyagi v. State of U.P. and Ors on 10 Dec 2025

Judgment

1. Since both the applications arise out of the same summoning order dated 18.10.2016, notice dated 18.07.2016 as also opposite party no.2 is

same, the same are being disposed of by a common order.

2. Heard learned counsel for the applicants and learned A.G.A. for the State and perused the material available on record.

3. Application No.3063 of 2017 under Section 482 Cr.P.C. has been filed for quashing the entire criminal proceedings in respect of Complaint Case No.552 of 2016 (Narendra Pratap Singh Vs. Saurabh Tyagi), under Section 138 of Negotiable Instruments Act, 1881 -2- A482 No. - 3063 of 2017 (hereinafter referred to as 'N.I. Act') as also quashing the summoning order dated 18.10.2016 whereas Application u/s 482 No.3074 of 2017 has been filed to quash the entire criminal proceedings in respect of Complaint Case No.551 of 2016 (Narendra Pratap Singh Vs. Pankaj Kumar Tyagi), under Section 138 of N.I. Act, pending before the Judicial Magistrate, Pratapgarh.

4. The factual matrix of the case is that the complainant/opposite party no.2- Narendra Pratap Singh, alleged to be the close acquaintance with the applicants. It is averred that owing to this relationship, he advanced distinct sums of money to the applicants for their business purposes on various dates. Specifically, regarding applicant Saurabh Tyagi (applicant in Application u/s 482 No.3063 of 2017), the complainant alleges advancing a total of 30,00,000/- (Thirty Lakhs (cid:1) Only) in five tranches between (Nine Lakhs on 07.02.2014, Six Lakhs

06.06.2014, Five Lakhs 05.08.2014, Eight Lakhs 12.11.2014 and Two Lakhs on 02.02.2015). Similarly, regarding applicant-Pankaj Tyagi (applicant in connected Application u/s 482 No.3074 of 2017), the complainant alleges advancing 30,00,000/- in four tranches between (cid:1) (Eight Lakhs on 09.09.2013, Seven Lakhs on 10.01.2014, Eight Lakhs on 09.03.2014 and Seven Lakhs on 06.05.2014).

5. To discharge the aforesaid liabilities, both the applicants, namely, Saurabh Tyagi and Pankaj Kumar Tyagi allegedly issued two separate cheques, both dated 30.05.2016, for an amount of 30,00,000/- each. (cid:1) Specifically, Cheque No.402122 was issued by applicant-Saurabh Tyagi and Cheque No. 869596 by applicant-Pankaj Tyagi.

6. The complainant presented the said cheques for encashment on

27.06.2016. However, both instruments were returned dishonored by the bank on 02.07.2016 with the endorsement "Insufficient Funds."

7. Being aggrieved, the complainant issued legal notices under the proviso to Section 138 of the N.I. Act on 18.07.2016. In the case of applicant-Pankaj Kumar Tyagi, the notice was admittedly served on -3- A482 No. - 3063 of 2017

20.07.2016 whereas in the case of applicant- Saurabh Tyagi, the notice was returned with the remark "Unclaimed."

8. Learned counsel for the applicants has argued that the proceedings constitute an abuse of the process of the Court. Regarding applicant- Pankaj Kumar Tyagi, it is submitted that the complaint is legally barred as "premature." The notice was served on 20.07.2016. In terms of Section 138(c) of the N.I. Act, the drawer has '15 days time' to make payment and this period expired on 04.08.2016. However, the complaint was filed on 03.08.2016, before the cause of action crystallized. In support of his argument, learned counsel relies on para 42 of the judgment passed by Hon'ble Apex Court in the case of Yogendra Pratap Singh vs. Savitri Pandey (2014) 10 SCC 713. The same is reproduced hereinbelow. "42. Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The period of one month under Section 142(b) begins from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within the prescribed period of one month, a complaint may be taken by the Court after the prescribed period. Now, since our answer to question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the NI Act. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to question (i). As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the Court of sufficient cause. Question (ii) is answered accordingly." -4- A482 No. - 3063 of 2017

9. In furtherance to that, with regard to applicant- Saurabh Tyagi, it is argued that the service of notice was defective as the father's name of applicant- Saurabh Tyagi was incorrectly mentioned as "Rajkumar Tyagi" instead of "Dev Dutt Tyagi," leading to the return of the notice. It is also important to note that the notice was sent on 18.07.2016 and an order dated 03.08.2016 discloses that the complaint has been filed on

03.08.2016. Although it is not possible but even then if it is assumed that the notice, sent from Pratapgarh to Ghaziabad, has been severed on second day, i.e. 19.07.2016 and the complaint is instituted on

03.08.2016, i.e. before the expiry on 15 days. Furthermore, learned counsel for the applicants contends that the underlying transaction is fabricated, as the applicant-Saurabh Tyagi was in abroad w.e.f.

12.05.2014 to 08.08.2014, which is supported by the tickets and passport, copy of which is annexed as Annexure Nos.7 and 8 to the Application u/s 482 No.3063 of 2017, rendering the alleged payment on 05.08.2014 impossible.

10. Per contra, learned A.G.A. and learned counsel for the complainant have opposed the prayer for quashing. They submit that the question of valid service in applicant- Saurabh Tyagi's case and the plea of alibi are disputed questions of fact that can only be adjudicated after adducing evidence during the trial. However, regarding the dates in applicant- Pankaj Kumar Tyagi's case, the factual position regarding the date of service and filing of the complaint is not disputed.

11. I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as the judgment cited above.

12. The Hon'ble Apex Court in Yogendra Pratap Singh Vs. Savitri Pandey (supra) has categorically held that a complaint filed before the expiry of the 15-day's period stipulated under Section 138(c) of the N.I. Act is not maintainable, as the cause of action has not yet arisen. The Apex Court observed that if the complaint is found to be premature, such -5- A482 No. - 3063 of 2017 complaint shall be treated as "no complaint" in the eye of law and cognizance cannot be taken by the Magistrate.

13. Since the complaint against both the applicants (Saurabh Tyagi and Pankaj Kumar Tyagi) was filed prior to arise of cause of action, the cognizance taken by the Magistrate is not tenable in law.

14. In view of the foregoing discussions, both the applications filed by applicants, namely, Saurabh Tyagi and Pankaj Kumar Tyagi are allowed. The summoning order dated 18.10.2016 and the entire proceedings of Complaint Case No.551 of 2016 and Complaint Case No.552 of 2016 are hereby quashed. The complainant is at liberty to file a fresh complaint in accordance with the provisions of law, if permissible, subject to the law of limitation and condonation of delay as laid down in Yogendra Pratap Singh (supra). (Rajeev Bharti,J.) December 10, 2025 Anand ANAND KUMAR SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench