# Abhishek Jain v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 1093
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-15
- **Case number:** Application U/S 482. No. 27006 of 2015
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhishek-jain-v-state-of-u-p-anr-50929
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 200, 202, 202(1), 202(2)
& 482 - Indian Penal Code, 1860 -
Sections 415 & 420 - - Negotiable
Instruments Act, 1881 - Sections 7, 9,
138, 142(1) & 142(1)(a) - Application under
Section 482 Cr.P.C. - for quashing of the
summoning order as well as the entire
proceedings - dishonour of cheque - Complaint
Case - applicant argued that opposite party no.
2 is neither the payee nor the holder in due
course of the cheque, making the complaint
legally untenable under Section 142(1)(a) of the
Act - complainant countered that the cheque
was issued to a proprietorship firm owned by
him, thereby making him the holder in due
course and entitled to file the complaint -
Applicant disputes the firm's status, claiming it is
a partnership, which would invalidate the
complaint filed in an individual capacity - while
relying on precedents including Rathish Babu
Unnikrishnan Vs St. (NCT of Delhi), court held
that, the complainant, who claimed to be the
proprietor of a firm is legally entitled to file the
complaint as a "holder in due course" - Even if
the firm were a partnership, the partner would
still qualify to maintain the complaint - since a
partnership firm is not a separate legal entity
from its partners - therefore, the complaint even
on behalf of the partner of a firm in his own
name is maintainable - court being not found
any good ground to interfere in the instant case
in exercise of jurisdiction under section 482 of
the
Cr.P.C.
-
accordingly,
application
is
dismissed.
(Para - 10, 14, 16)

Application Dismissed. (E-11)

List of referred Cases: -

## Text

3 All. Abhishek Jain Vs. State of U.P. & Anr.
1093
criminal case has been lodged only after
failure to obtain relief in the civil suits,
coupled with denial of relief in the interim
therein to the respondent no.2/her family
members. It is evident that resort was now
being had to criminal proceedings which,
in the considered opinion of this Court, is
with ulterior motives, for oblique reasons
and is a clear case of vengeance."

18. It is also clear from the record that
impugned complaint was filed after 11
years of disputed money transaction with
ulterior motive.

19. In view of the above, proceeding
of the Complaint Case No. 1151 of 2017,
M/s Deepak Agro vs. M/s Raghu, under
Section 420 IPC, Police Station- Transport
Nagar, District- Meerut along with the
impugned
summoning
order
dated
01.03.2017 passed by the A.C.J.M. Court
No. 8, Meerut, is hereby quashed.

20. Accordingly, the application is
allowed.
----------
(2024) 3 ILRA 1093
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.12.2023

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/S 482. No. 27006 of 2015

Abhishek Jain ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sri Ajay Kumar Pandey, Sri Satish Trivedi,
Sri Sheshadri Trivedi

Counsel for the Respondents:
G.A., Sri Jai Raj, Sri Kamlesh Kumar Tiwari
Criminal Law - Criminal Procedure Code,
1973 - Sections 200, 202, 202(1), 202(2)
& 482 - Indian Penal Code, 1860 -
Sections 415 & 420 - - Negotiable
Instruments Act, 1881 - Sections 7, 9,
138, 142(1) & 142(1)(a) - Application under
Section 482 Cr.P.C. - for quashing of the
summoning order as well as the entire
proceedings - dishonour of cheque - Complaint
Case - applicant argued that opposite party no.
2 is neither the payee nor the holder in due
course of the cheque, making the complaint
legally untenable under Section 142(1)(a) of the
Act - complainant countered that the cheque
was issued to a proprietorship firm owned by
him, thereby making him the holder in due
course and entitled to file the complaint -
Applicant disputes the firm's status, claiming it is
a partnership, which would invalidate the
complaint filed in an individual capacity - while
relying on precedents including Rathish Babu
Unnikrishnan Vs St. (NCT of Delhi), court held
that, the complainant, who claimed to be the
proprietor of a firm is legally entitled to file the
complaint as a "holder in due course" - Even if
the firm were a partnership, the partner would
still qualify to maintain the complaint - since a
partnership firm is not a separate legal entity
from its partners - therefore, the complaint even
on behalf of the partner of a firm in his own
name is maintainable - court being not found
any good ground to interfere in the instant case
in exercise of jurisdiction under section 482 of
the
Cr.P.C.
-
accordingly,
application
is
dismissed.
(Para - 10, 14, 16)

Application Dismissed. (E-11)

List of referred Cases: -

1. Milind Shripad Chadurkar Vs Kalim M. Khan &
anr.- Criminal Appeal No. 643/2011,

2. Rathish Babu Unnikrishnan Vs St. of (NCT of
Delhi) - 2022 SCC Online SC 513,

3. Tanna and Modi Vs CIT - 2007 vol. 7 SCC
434,

4. CIT Vs R M Chidambaram Pillai - 1977 vol. 1
SCC 431,
1094 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Munish Ram Vs Municipal Committee - 1979
vol. 3 SCC 83.

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. Heard Sri Ajay Kumar Pandey,
learned counsel for the applicant, Sri Jai
Raj, learned counsel for opposite party no.2
and Sri Pankaj Srivastava, learned A.G.A.
for the State.

2. The instant application U/S 482 has
been filed seeking quashing the impugned
summoning order dated 05.12.2014 as well
as entire proceedings of Complaint Case
No.3473 of 2014 (Prasant Sharma Vs.
Abhishek Jain), under Section 138 of
Negotiable Instruments Act, 1881, Police
Station Hariparvat, District Agra, pending
in the Court of Additional Chief Judicial
magistrate, Court No.VIII, Agra.

3. Learned counsel for the applicant
submits that in the instant case, the
complaint under Section 138 of Negotiable
Instruments Act, 1881 (hereinafter referred
to as the "N.I. Act") has been filed by the
opposite party no.2, whereas he was not the
payee of the said cheque, therefore, the
complaint is not maintainable. Learned
counsel for the applicant relying upon the
provisions of Section 142 (1) (a) of the N.I.
Act submits that such complaint is
maintainable only on behalf of the payee or
the holder in due course of the cheque.
Learned counsel for the applicant submits
that the opposite party no.2 herein is
neither the payee nor the holder in due
course of the cheque as has been defined in
Section 7 and 9 of the N.I. Act, 1881.

4. Learned counsel for the opposite
party no.2, on the other hand, submits that
undisputedly the cheque in the instant case
was issued in favour of Raj Rajeshwari
Enterprises which is the proprietorship of
the opposite party no.2, who has filed a
complaint being the proprietorship firm.
Thus, the complaint by the opposite party
no.2 in his individual name is maintainable
as he becomes holder in due course of the
said cheque. In support of submissions
made by learned counsel for the applicant
he placed reliance upon the judgment dated
03.03.2011 of Apex Court in the case of
Criminal Appeal No.643 of 2011 (Milind
Shripad Chandurkar Vs. Kalim M. Khan
& another).

5. However, learned counsel for the
applicant disputes that the said Raj
Rajeshwari
Enterprises
is
not
a
proprietorship but a partnership firm,
therefore, he submits that complaint in the
individual name of one of such partnership
firm is not maintainable. Learned counsel
for the applicant further submits that such
Raj Rajeshwari Enterprises is not a
partnership firm, is not disputed by the
opposite party no.2 in the counter affidavit
filed by him.

6. Learned A.G.A. for the State also
submits that even partner or the proprietor
of a firm is holder in due course of the
cheque, therefore, such complaint is
maintainable in the name of a partner or a
proprietor of such firm in individual
capacity as well. Learned A.G.A. for the
State has placed reliance on a judgment of
Apex
Court
in
Rathish
Babu
Unnikrishnan Vs. State (NCT of Delhi),
2022 SCC OnLine SC 513.

7. Having heard learned counsel for
the parties, this Court has carefully gone
through the record of this case and from
perusal of the record it is found that it will
be relevant to take note of Sections 7, 9,
3 All. Abhishek Jain Vs. State of U.P. & Anr.
1095
142 (1) (a) of the N.I. Act, which reads as
under:-

"Section 7 of N.I. Act, 1881
defines "payee" as the person named in the
instrument, to whom or to whose order the
money is by the instrument directed to be
paid.

"Section 9 defines "holder in due
course"
as
any
person
who
for
consideration became the possessor of a
cheque if payable to a bearer or the payee
or endorsee thereof.

Section 142 (1) (a) provides that
the complaint under Section 138 N.I. Act is
to be filed either by the payee of the said
cheque or the holder in due course of the
said cheque."

8. From the aforesaid provisions, it is
crystal clear that a complaint under Section
138 of the Act can be filed by the payee of
the cheque or the holder in due course. The
definition of holder in due course is wide
enough and includes any person, who
comes in possession of the said cheque for
consideration.

9. In the case of Milind Shripad
Chandurkar (supra), the Apex Court has
held as under:-

"In a case of this nature, where
the "payee" is a company or a sole
proprietary concern, such issue cannot be
adjudicated upon taking any guidance from
Section 142 of the Act, 1881 but the case
shall be governed by the general law i.e.
the Companies Act 1956 or by civil law
where an individual carries on business in
the name or style other than his own name.
In such a situation, he can sue in his own
name and not in trading name, though
others can sue him in the trading name. So
far as Section 142 is concerned, a
complaint shall be maintainable in the
name of the "payee", proprietary concern
itself or in the name of the proprietor of the
said concern."

10. In the instant case, the opposite
party no.2, claims himself to the proprietor
of the firm Raj Rajeshwari Enterprises, thus
in considered opinion of this Court, a
proprietor of a firm is covered within the
definition of holder in due course and
complaint by him under Section 138/142 of
N.I. Act is maintainable.

11. In Tanna and Modi vs. CIT,
(2007) 7 SCC 434, the Apex Court has
held that the partnership firm is not an
independent legal entity thus it is not a
juristic person. Under the partnership Act, a
partner of a partnership firm represents the
firm itself and he has an implied authority
in terms of Section 19 of the Partnership
Act.

12. Similarly in C.I.T. vs. R.M.
Chidambaram Pillai, (1977) 1 SCC 431,
the Apex Court has held that a partnership
form is not a legal person even though it
has
some
attributes
of
personality.
Partnership is a certain relation between
persons, with the product of agreement
being, to share the profits of a business.
'Firm' is a collective noun, a compendious
expression of designate an entity, not a
person.

13. In Munshi Ram vs. Municipal
Committee, (1979) 3 SCC 83, the Apex
Court has held that partnership firm is not a
legal entity separate and distinct from
partners
and
is
only
compendious
description of individuals who compose the
firm.

14. Therefore, the partners of a
partnership firm are not different legal
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
entities. They are one and the same.
Therefore, even if the submission of
applicants be assumed to be true that the
cheque was issued in favour of the
partnership firm than the partner of the said
firm becomes the holder in due course of
the said cheque, which is capable of
maintaining a complaint against the drawer
of the cheque in terms of Section 142(1) of
Negotiable Instrument Act.

15. In Rathish Babu Unnikrishnan
(Supra) the Apex Court considering the
scope of interference while exercising
jurisdiction under Section 482 Cr.P.C., in
complaint case lodged under Section 138 of
N.I. Act, has held as under:-

"16. The proposition of law as set
out above makes it abundantly clear that
the Court should be slow to grant the relief
of quashing a complaint at a pre-trial stage,
when the factual controversy is in the realm
of possibility particularly because of the
legal presumption, as in this matter. What
is also of note is that the factual defence
without having to adduce any evidence
need to be of an unimpeachable quality, so
as to altogether disprove the allegations
made in the complaint.

17. The consequences of scuttling
the criminal process at a pre-trial stage can
be
grave
and
irreparable.
Quashing
proceedings at preliminary stages will
result in finality without the parties having
had an opportunity to adduce evidence and
the consequence then is that the proper
forum i.e., the trial Court is ousted from
weighing the material evidence. If this is
allowed, the accused may be given an unmerited advantage in the criminal process.
Also because of the legal presumption,
when the cheque and the signature are not
disputed by the appellant, the balance of
convenience at this stage is in favour of the
complainant/prosecution, as the accused
will have due opportunity to adduce
defence evidence during the trial, to rebut
the presumption.

18. Situated thus, to non-suit the
complainant, at the stage of the summoning
order, when the factual controversy is yet
to be canvassed and considered by the trial
court will not in our opinion be judicious.
Based upon a prima facie impression, an
element of criminality cannot entirely be
ruled out here subject to the determination
by the trial Court. Therefore, when the
proceedings are at a nascent stage, scuttling
of the criminal process is not merited."

16. From the aforesaid observations
made by the Apex Court, it is crystal clear
that if the cheque is issued in the name of a
firm, whether proprietorship or partnership
firm, the proprietor or the partner as the
case may be, becomes the holder in due
course and he can sue in his own name and
it is not necessary for him to sue in a
trading name, though others can sue such
firm in the trading name. Therefore, the
instant complaint filed by the opposite
party no.2, claiming himself to be a
proprietor of the said firm in whose name
the said cheque is issued by the applicant
herein, in the considered opinion of this
Court, complaint is maintainable. Even if
the contention of applicant be accepted that
the said Raj Rajeshwari Enterprises is a
partnership and not a proprietorship firm, it
will not help the applicant herein as even
the partnership firm does not have a
different legal identity and is not a juristic
person. Therefore, a partner of the firm also
becomes the holder in due course of the
cheque within the meaning of Section 142
(1) of the N.I. Act. Thus, the complaint
even on behalf of the partner of a firm in
his own name is maintainable. Otherwise,
also in the instant case, the applicant does
3 All. Mohit Soni Vs. State of U.P. & Anr.
1097
not dispute that the cheque was issued in
the name of the said Raj Rajeshwari
Enterprises and the said cheque was
dishonoured and demand notice was issued
by the opposite party no.2, he has failed to
comply with the said notice. Therefore, in
view of the presumption under Section 139
of the N.I. Act and as per the law laid down
by the Apex Court, this Court does not find
any good ground to interfere in the instant
case in exercise of jurisdiction under
Section 482 Cr.P.C.

17.

Accordingly,
the
instant
application is devoid of merit and is hereby
dismissed.
----------
(2024) 3 ILRA 1097
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.10.2023

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/S 482. No. 31175 of 2017

Mohit Soni ...Applicant
Versus
State of U.P. & Anr. ... Opposite Parties

Counsel for the Applicant:
Sri Ashok Gupta, Sri Rakesh Kumar Singh,
Sri Shesh Kumar Srivastava, Sri Viresh
Mishra, Sri Aakash Kishan

Counsel for the Opposite Parties:
G.A., Sri Rajiv Dwivedi, Sri Satya Prakash
Maurya, Sri Shashi Kumar Verma, Sri C.P.
Awasthi

Criminal Law - Indian Penal Code, 1860 -
Sections 493, 376, 504 & 506 - Charge
Sheet
-
Quashing
of
-
Counsel
for
applicant submits that after exchange of
pleadings, opposite party no.2 filed joint
compromise affidavit before Trial Court,
and her counsel does not dispute this fact
- In compromise, opposite party no.2
declared she does not wish to pursue case
as she is now married to someone else
and
settled,
and
continuation
of
prosecution would only cause harassment
- Further submitted as per FIR itself,
applicant and opposite party no.2 were in
live-in relationship for over six years, and
following disputes arising when marriage
did not materialize, present prosecution
initiated by opposite party no.2 - Held,
where Court finds that alleged heinous
offence is not made out on facts, and
parties amicably settled their disputes,
leaving only remote and bleak chances of
conviction, continuation of proceedings
would result in oppression and prejudice
to both sides - In such circumstances,
proceedings may be quashed u/s 482
Cr.P.C. on basis of compromise - FIR and
St.ments u/s 161 and 164 Cr.P.C. reveal
no element of deception at inception,
relationship was consensual with family
approval - Promise of marriage not false
from beginning, but owing to subsequent
developments, applicant declined to marry
- Facts indicate failed live-in relationship
rather than commission of offence - No
offence u/s 376 IPC made out against
applicant - Opposite party no.2, being an
adult, was aware no marriage had taken
place - Relationship was consensual,
voluntary and known to both families - No
inducement or lack of consent disclosed -
Hence, no case u/s 493 IPC is made out -
Impugned order, quashed. (Para 3, 14,
23)

Application disposed of. (E-13)

List of Cases cited:

1. Jiyaullah Vs St. of U.P. & anr., Application u/s
482 No. 5419 of 2021

2. Kapil Gupta Vs St. of NCT of Delhi & Anr.,
Criminal Appeal No. 1217 of 2022, dated
10.08.2022

3. Shiji Vs Radhika : (2011) 10 SCC 705, (Paras
17 to 19)