Rakesh Kumar Awasthi v. State Of U.P. Thru. The Prin. Secy. Home Lko. And Another

1. Heard learned counsel for the applicant, learned AGA for the State, Sri Arvind Kumar, Advocate, who has filed his Power today on behalf of opposite party no.2, which is taken on record and perused the record.

2. The present application has been filed for the following main reliefs: "I. Set aside and quash the impugned order dated 06.03.2024 passed by the learned Civil Judge (J.D.) F.T.C. Court No. 43, Barabanki, in Complaint Case No. 1024/2020, Rakesh Kumar Awasthi Vs Vinod Kumar Shukla, filed under section 138 of N.I. Act, Police Station-Ram Nagar, District - Barabanki, as well as Revisional order dated 13.06.2024, passed by the Additional Session Judge Court No. 2, Barabanki, in Crl revision No. 44/2024, contained as Annexure No.1 to 2 to this petition. II. Issue a direction to the learned trial court to proceed further on recovery warrant of 20% amount out of total cheque amount, payable to the petitioner, pending before him."

3. It is the case of the applicant that opposite party no.2 and applicant were known to each other and the opposite party no.2 had taken Rs.14,50,000/- from the applicant in several installments through cash in lieu of sale deed of his house to be executed by opposite party no.2, but opposite party no.2 did not execute the sale deed of his house nor returned the amount of the applicant which has been given to him, as a result of which, proceedings 2 A482 No. 9232 of 2025 under Section 138 of N.I. Act were initiated by the applicant. The opposite party no.2 had given account payee cheque bearing no.000054 dated

16.8.2020 amounting to Rs.14,50,000/-. The applicant presented the said cheque on 16.8.2020 and the same was dishonoured. Thereafter legal notice was served on opposite party no.2 on 21.9.2020 through registered post and thereafter, the complaint was filed on 21.10.2020 under Section 138 of N.I.Act. The applicant moved an application dated 10.5.2023 along with an affidavit under Section 143A of the N.I.Act for providing 20% amount as compensation which was allowed by the trial court vide order dated

24.5.2023. An objection dated 18.5.2023 was moved on behalf of opposite party no.2 in Complaint Case no.1024 of 2020 filed under Section 138 of N.I.Act. Against the order dated 24.5.2023 passed by the trial court, opposite party no.2 filed Criminal Revision no.107 of 2023 on 30.6.2023, which was dismissed on 30.11.2023. It has been submitted by learned counsel for the applicant that opposite party no.2 has adopted delaying tactics to linger on the case and he moved an application on 4.7.2023 under Section 340 Cr.P.C. against which, an objection dated 5.8.2023 was filed by the applicant.

4. It has been further submitted that in pursuance of the order dated

27.2.2024 passed by this Court in Application U/s 482 No.1722 of 2024, the trial court has recalled the recovery warrant issued against opposite party no.2 till disposal of the application moved by opposite party no.2 under the old Section 91 of Cr.P.C. It has been submitted that the order impugned dated 6.3.2024 could not have been passed by the court below in view of the fact that the opposite party no.2 had already availed the remedy under Section 482 Cr.P.C. and this Court did not interfere in the matter. He has submitted that the revisional court has also committed error in passing the order. Learned counsel for the applicant has submitted that the impugned order dated 6.3.2024 was passed around one and a half years back, but on one way or the other, the proceedings are being lingered on, for which opposite party no.2 is responsible whereas applicant is cooperating in the proceedings.

5. On the other hand, learned counsel for opposite party no.2 has submitted that in Application U/s 482 Cr.P.C. No.1722 of 2024, this Court passed an order on 27.2.2024, issuing a direction that the court below will look into the application dated 24.1.2024 and will get the expert opinion on the cheque 3 A482 No. 9232 of 2025 issued by opposite party no.2. He has submitted that once a direction has been issued by this Court under Section 482 Cr.P.C., then the impugned order dated 6.3.2024 is justified because unless the expert opinion is sought, the warrant cannot be executed. He further submits that unless the court comes to the conclusion that the cheque is issued by opposite party no.2 and the same is verified by the expert opinion, certainly the warrant cannot be executed.

6. After going through the record, I find that the court below passed the order on 6.3.2024 in pursuance of the direction issued by this Court in Application U/s 482 Cr.P.C. No.1722 of 2024 on 27.2.2024 and the Court has not stayed the warrant only with the intention that unless the expert opinion is called or the question of issuance of cheque by opposite party no.2 is verified, it is not possible to execute warrant. I do not find any illegality or infirmity in the impugned orders. However, at the same time, this Court is pained to observe that this Court had directed the court below vide order dated 27.2.2024 to take a decision on the application preferred by opposite party no.2, but such proceedings have not been finalized.

7. In view of the aforesaid factual aspect, I do not find it appropriate to interfere in the impugned orders. However, I direct the court below to decide the aforesaid case in accordance with law within a period of two months from the date a certified copy of this order is placed before the court concerned, without granting unnecessary adjournments to either of the parties. Needless to say that the decision will also be taken on the application moved by opposite party no.2 in accordance with law.

8. With the aforesaid observations, this application stands disposed of. December 2, 2025 Sachin (Brij Raj Singh,J.) SACHIN MEHROTRA SACHIN MEHROTRA High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

1. Heard learned counsel for the applicant, learned AGA for the State, Sri Arvind Kumar, Advocate, who has filed his Power today on behalf of opposite party no.2, which is taken on record and perused the record.

2. The present application has been filed for the following main reliefs: "I. Set aside and quash the impugned order dated 06.03.2024 passed by the learned Civil Judge (J.D.) F.T.C. Court No. 43, Barabanki, in Complaint Case No. 1024/2020, Rakesh Kumar Awasthi Vs Vinod Kumar Shukla, filed under section 138 of N.I. Act, Police Station-Ram Nagar, District - Barabanki, as well as Revisional order dated 13.06.2024, passed by the Additional Session Judge Court No. 2, Barabanki, in Crl revision No. 44/2024, contained as Annexure No.1 to 2 to this petition. II. Issue a direction to the learned trial court to proceed further on recovery warrant of 20% amount out of total cheque amount, payable to the petitioner, pending before him."

3. It is the case of the applicant that opposite party no.2 and applicant were known to each other and the opposite party no.2 had taken Rs.14,50,000/- from the applicant in several installments through cash in lieu of sale deed of his house to be executed by opposite party no.2, but opposite party no.2 did not execute the sale deed of his house nor returned the amount of the applicant which has been given to him, as a result of which, proceedings 2 A482 No. 9232 of 2025 under Section 138 of N.I. Act were initiated by the applicant. The opposite party no.2 had given account payee cheque bearing no.000054 dated

16.8.2020 amounting to Rs.14,50,000/-. The applicant presented the said cheque on 16.8.2020 and the same was dishonoured. Thereafter legal notice was served on opposite party no.2 on 21.9.2020 through registered post and thereafter, the complaint was filed on 21.10.2020 under Section 138 of N.I.Act. The applicant moved an application dated 10.5.2023 along with an affidavit under Section 143A of the N.I.Act for providing 20% amount as compensation which was allowed by the trial court vide order dated

24.5.2023. An objection dated 18.5.2023 was moved on behalf of opposite party no.2 in Complaint Case no.1024 of 2020 filed under Section 138 of N.I.Act. Against the order dated 24.5.2023 passed by the trial court, opposite party no.2 filed Criminal Revision no.107 of 2023 on 30.6.2023, which was dismissed on 30.11.2023. It has been submitted by learned counsel for the applicant that opposite party no.2 has adopted delaying tactics to linger on the case and he moved an application on 4.7.2023 under Section 340 Cr.P.C. against which, an objection dated 5.8.2023 was filed by the applicant.

4. It has been further submitted that in pursuance of the order dated

27.2.2024 passed by this Court in Application U/s 482 No.1722 of 2024, the trial court has recalled the recovery warrant issued against opposite party no.2 till disposal of the application moved by opposite party no.2 under the old Section 91 of Cr.P.C. It has been submitted that the order impugned dated 6.3.2024 could not have been passed by the court below in view of the fact that the opposite party no.2 had already availed the remedy under Section 482 Cr.P.C. and this Court did not interfere in the matter. He has submitted that the revisional court has also committed error in passing the order. Learned counsel for the applicant has submitted that the impugned order dated 6.3.2024 was passed around one and a half years back, but on one way or the other, the proceedings are being lingered on, for which opposite party no.2 is responsible whereas applicant is cooperating in the proceedings.

5. On the other hand, learned counsel for opposite party no.2 has submitted that in Application U/s 482 Cr.P.C. No.1722 of 2024, this Court passed an order on 27.2.2024, issuing a direction that the court below will look into the application dated 24.1.2024 and will get the expert opinion on the cheque 3 A482 No. 9232 of 2025 issued by opposite party no.2. He has submitted that once a direction has been issued by this Court under Section 482 Cr.P.C., then the impugned order dated 6.3.2024 is justified because unless the expert opinion is sought, the warrant cannot be executed. He further submits that unless the court comes to the conclusion that the cheque is issued by opposite party no.2 and the same is verified by the expert opinion, certainly the warrant cannot be executed.

6. After going through the record, I find that the court below passed the order on 6.3.2024 in pursuance of the direction issued by this Court in Application U/s 482 Cr.P.C. No.1722 of 2024 on 27.2.2024 and the Court has not stayed the warrant only with the intention that unless the expert opinion is called or the question of issuance of cheque by opposite party no.2 is verified, it is not possible to execute warrant. I do not find any illegality or infirmity in the impugned orders. However, at the same time, this Court is pained to observe that this Court had directed the court below vide order dated 27.2.2024 to take a decision on the application preferred by opposite party no.2, but such proceedings have not been finalized.

7. In view of the aforesaid factual aspect, I do not find it appropriate to interfere in the impugned orders. However, I direct the court below to decide the aforesaid case in accordance with law within a period of two months from the date a certified copy of this order is placed before the court concerned, without granting unnecessary adjournments to either of the parties. Needless to say that the decision will also be taken on the application moved by opposite party no.2 in accordance with law.

8. With the aforesaid observations, this application stands disposed of. December 2, 2025 Sachin (Brij Raj Singh,J.) SACHIN MEHROTRA SACHIN MEHROTRA High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench