# Abhishek Mishra @ Pintu v. State of U.P. & Anr

- **Citation:** (2025) 4 ILRA 718
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-05
- **Case number:** Application U/S 482 No. 3099 of 2024
- **Bench:** Rajiv Gupta, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhishek-mishra-pintu-v-state-of-u-p-anr-53257
- **Pages:** 9

## Headnote

(A) Criminal Law - Negotiable Instruments
Act, 1881 - Sections 138 & 143 -
Dismissal
of
complaint
for
want
of
prosecution - Reference to Larger Bench
on maintainability of revision vs. appeal -
The Code of criminal procedure, 1973 -
Sections 203, 204 , 256(1), 378(4) & 397 -
Whether dismissal of complaint before
issuance of summons amounts to acquittal
- Where no summoning order under
Section 204 Cr.P.C. is passed, dismissal of
complaint is under Section 203 Cr.P.C.,
and not an acquittal under Section 256(1)
Cr.P.C. - Section 256(1) Cr.P.C. not
applicable
where
complaint
dismissed
prior to summoning stage under Section
203 Cr.P.C. - appeal under Section 378(4)
Cr.P.C. does not lie where complaint
dismissed under Section 203 Cr.P.C. - only
remedy is revision - complaint dismissed
before summons, pre-cognizance stage -
Reference not answered as foundational
facts did not attract the legal issue -
Complaint dismissed under Section 203
4 All. Abhishek Mishra @ Pintu Vs. State of U.P. & Anr.
719
Cr.P.C.
before
summoning
does
not
amount to acquittal under Section 256
Cr.P.C. - remedy lies in revision, not
appeal. (Para - 1,2,5,10,11,13)
Complaint under Section 138 N.I. Act dismissed
for insufficient material before summoning -
revisional court set aside order and remanded
the matter - applicant challenged maintainability
of revision, relying on coordinate Bench decision
in Vinay Kumar case. (Para - 4 to 8)

HELD: - As the order dated 13.03.2019 is prior
to issuance of summons and thus is an order
passed under Section 203 Cr.P.C., stage of
Section 256 Cr.P.C. has yet not arisen in the
present matter. The question whether an order
dismissing a complaint under Section 138 of the
N.I. Act for want of prosecution will amount to
acquittal under Section 256(1) Cr.P.C. and
whether the same can be challenged in appeal
under Section 378(4) Cr.P.C. or is an order
revisable under Section 397 Cr.P.C. does not
arise in the present case. (Para -11)

Reference needs no deliberation, returned
to the appropriate Bench, and the matter
directed to be listed before it. (E-7)

LIST OF CASES CITED: -

## Text

718 INDIAN LAW REPORTS ALLAHABAD SERIES
2003. The scope available for proceeding
under Section 152 of the Act of 2003
attracts all the sections wherein the offence
has been mentioned in the the Act of 2003
precisely under Sections 135, 136, 138 as
well as 149 of the Act of 2003 also.

13. The institution of the FIR under
Section 135 of the Act of 2003 was not inconsonance with mandate of law and
proceed further in shape of preferring
charge-sheet against the alleged Managerapplicant
before
concerned
Court,
specifically under Section 135 of the Act
of 2003, whereupon cognizance has been
taken up by learned court concerned is
also not sustainable in the eye of law.

14. In view of aforementioned facts
and circumstances, once the implication
of the applicant being the 'Manager' of
the Institution against which an FIR has
been instituted is contrary to all cannons
of legality and the attraction of Section
149 of the Act of 2003 has not been dealt
with by learned court concerned while
passing order dated 02.05.2024 through
which cognizance of offence has been
taken up while issuing summons to the
applicant, the same is deserves to be
quashed.

15. In the light of aforementioned
discussions,
the
entire
proceedings
arising out of Case Crime No. 215 of
2019 under Section 135 of the Indian
Electricity Act, 2003 are hereby quashed
and set-aside.

16. The instant application u/s 482
Cr.P.C. stands allowed accordingly.

17. However, it is made clear that
this order will not preclude the authorities
concerned to proceed a fresh, if required
against the applicant under specific sections
available under the Indian Electricity Act,
2003.
----------
(2025) 4 ILRA 718
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.04.2025

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SAMIT GOPAL, J.

Application U/S 482 No. 3099 of 2024

Abhishek Mishra @ Pintu ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sri Vijay Kumar Pandey

Counsel for the Respondents:
Sri Ashok Kumar Gupta, G.A., Sri Sunil Vashishth

(A) Criminal Law - Negotiable Instruments
Act, 1881 - Sections 138 & 143 -
Dismissal
of
complaint
for
want
of
prosecution - Reference to Larger Bench
on maintainability of revision vs. appeal -
The Code of criminal procedure, 1973 -
Sections 203, 204 , 256(1), 378(4) & 397 -
Whether dismissal of complaint before
issuance of summons amounts to acquittal
- Where no summoning order under
Section 204 Cr.P.C. is passed, dismissal of
complaint is under Section 203 Cr.P.C.,
and not an acquittal under Section 256(1)
Cr.P.C. - Section 256(1) Cr.P.C. not
applicable
where
complaint
dismissed
prior to summoning stage under Section
203 Cr.P.C. - appeal under Section 378(4)
Cr.P.C. does not lie where complaint
dismissed under Section 203 Cr.P.C. - only
remedy is revision - complaint dismissed
before summons, pre-cognizance stage -
Reference not answered as foundational
facts did not attract the legal issue -
Complaint dismissed under Section 203
4 All. Abhishek Mishra @ Pintu Vs. State of U.P. & Anr.
719
Cr.P.C.
before
summoning
does
not
amount to acquittal under Section 256
Cr.P.C. - remedy lies in revision, not
appeal. (Para - 1,2,5,10,11,13)
Complaint under Section 138 N.I. Act dismissed
for insufficient material before summoning -
revisional court set aside order and remanded
the matter - applicant challenged maintainability
of revision, relying on coordinate Bench decision
in Vinay Kumar case. (Para - 4 to 8)

HELD: - As the order dated 13.03.2019 is prior
to issuance of summons and thus is an order
passed under Section 203 Cr.P.C., stage of
Section 256 Cr.P.C. has yet not arisen in the
present matter. The question whether an order
dismissing a complaint under Section 138 of the
N.I. Act for want of prosecution will amount to
acquittal under Section 256(1) Cr.P.C. and
whether the same can be challenged in appeal
under Section 378(4) Cr.P.C. or is an order
revisable under Section 397 Cr.P.C. does not
arise in the present case. (Para -11)

Reference needs no deliberation, returned
to the appropriate Bench, and the matter
directed to be listed before it. (E-7)

LIST OF CASES CITED: -

1. Vinay Kumar Vs St. of U.P., Criminal Revision
No. 3426 of 2005

(Delivered by Hon'ble Samit Gopal, J.)

1. A reference has been made by
learned Single Judge in paragraph 13 of an
order dated 13.03.2024 which reads as
under:-

"13. In this view of the matter,
judicial propriety demands that this matter
be referred to a Larger Bench to decide
these questions:

(i) Whether the dismissal of
complaint u/s 138 of the Act, 1881 for want
of prosecution will amount to acquittal u/s
256(1) Cr.P.C., and same can be challenged
in appeal u/s 378(4) Cr.P.C., or is that
order reviseable u/s 397 Cr.P.C.?

(ii) Whether the case of Vinay
Kumar (supra) has been correctly decided
by holding that against the dismissal of
complaint u/s 138 of the Act, 1881, appeal
lies u/s 378(4) Cr.P.C. ,not the revision?"

2. Vide order dated 18.04.2024
Hon'ble The Chief Justice has constituted
the present Larger Bench in the matter.

3. Heard Shri Vijay Kumar Pandey,
learned counsel for the applicant, Shri Sunil
Vashishth, Holding Brief of Shri Ashok
Kumar Gupta, learned counsel for the O.P.
No.2 and Shri Shashi Shekhar Tiwari &
Shri Jitendra Kumar Jaiswal, learned
counsels for the State/O.P. No.1 and
perused the records.

4. The entire issue before the learned
Single Judge was of challenge of an order
dated 26.10.2019 passed by the Additional
Sessions Judge / F.T.C. (Crime Against
Women), Jaunpur in Criminal Revison No.
67 / 2019 (Shivnath Pandey Vs. Abhishek
Mishra @ Pintu) and the order dated
18.08.2023 passed by the Additional Civil
Judge (J.D.) / Judicial Magistrate-IIIrd,
Jaunpur in Case No. 311 / 2022 (Shivnath
Pandey Vs. Abhishek), under Section 138
of the Negotiable Instruments Act, 1881
(hereinafter referred to as the "N.I. Act" )
Police Station Shahganj, District Jaunpur.

5. Vide order dated 13.03.2019 a
compliant filed by the complainant was
dismissed by the Additional Chief Judicial
Magistrate-IInd, Jaunpur under Section 138
N.I. Act on the ground that matter has been
pending since the year 2018 but despite
passage of 01 year no arguments are being
advanced for summoning. The records
contain insufficient evidence and their does
not appear any ground for proceeding.
Thus, due to unavailability of sufficient
720 INDIAN LAW REPORTS ALLAHABAD SERIES
material, the complaint is liable to be
dismissed. The Court thus dismissed the
said complaint on the insufficiency of
material.

6. Against the said order 13.03.2019 a
Criminal Revision No. 67 / 2019 (Shivnath
Pandey Vs. Abhishek Mishra @ Pintu) was
filed which was allowed vide judgement &
order dated 26.10.2019 and the impugned
order dated 13.03.2019 therein was setaside with a direction that the complainant
to be afforded an opportunity of hearing
and the matter be decided on its merit.

7. Subsequently vide order dated
18.08.2023
the accused-applicant
was
summoned for offence under Section 138
N.I. Act.

8. The said two orders were thus
subject matter of challenge in the present
petition.

9. The learned Single Judge passed an
order dated 13.03.2024 by framing the
aforesaid questions and referring the matter
to a Larger Bench. The matter is thus
before this Larger Bench. The order is
quoted herein below:-

"1. Heard learned counsel for the
applicant, Sri Ashok Kumar Gupta, learned
counsel for opposite party no.2 and Sri
Rajeev Kumar Sonkar, State Law Officer
for the State.

2. The present 482 Cr.P.C.
application has been filed to quash the
entire proceedings of Case No.311 of 2022
(Old No.744 of 2018) (Shivnath Vs.
Abhishek),
under
Section-
138
of
Negotiable
Instruments
Act,
1881
(hereinafter referred to as 'the Act, 1881'),
Police Station-Shahganj, District-Jaunpur,
pending in the Court of learned Additional
Civil Judge (J.D.)/Judicial Magistrate
Third, Jaunpur, as well as impugned order
dated 26.10.2019.

3. The contention of learned
counsel for the applicant is that the
complaint of the opposite party no.2 was
rejected by order dated 13.03.2019 for nonprosecution as well as for not producing
any evidence despite giving repeated
opportunities and against that order,
revision was preferred by the opposite
party no.2, which was allowed by order
dated 26.10.2019, and the matter was
remanded to the Court below to consider
the same on merits. It is further submitted
that the order of the revisional Court is
erroneous as no revision was maintainable
because the order dismissing the complaint
amounts to acquittal and the same can be
challenged in appeal under Section-378(4)
of Cr.P.C. and revisional court has no
jurisdiction to entertain the revision
against that order. In support of his
contention,
learned
counsel
for
the
applicant has also relied upon the
judgement of the coordinate Bench of this
Court passed in Vinay Kumar Vs. State of
U.P. in Criminal Revision No.3426 of 2005
decided on 04.09.2007.

4. Per contra, learned counsel for
opposite party no.2 and State Law Officer
has submitted that proceeding under the
Act, 1881 is a summary proceeding and
procedures of Cr.P.C. is not applicable in
the proceeding of the Act, 1881. It was also
submitted that u/s 143 Cr.P.C., it was
explicitly mentioned that in the proceeding
of the Act, 1881, Sections 262 to 265 of
Cr.P.C. will be applicable, and provision of
appeal is provided u/s 148 of the Act, 1881
against the conviction u/s 138 of the Act,
1881.

5.
After
considering
the
submission of parties and on perusal of the
record, it is undisputed that proceeding
4 All. Abhishek Mishra @ Pintu Vs. State of U.P. & Anr.
721
under the Act 1881 is summary proceeding,
and Section-143 of the Act 1881, itself
provides the procedure of the complaint
under the Act 1881 and further provides
that Sections 262 to 265 Cr.P.C. will be
applicable as far as maybe even without
adopting the strict procedure of summons
cases. For ready reference, Section 143 of
the Act 1881 is being quoted as under:

"143. Power of Court to try cases
summarily.-(1) Notwithstanding anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974), all offences
under this Chapter shall be tried by a
Judicial Magistrate of the first class or by a
Metropolitan Magistrate and the provisions
of sections 262 to 265 (both inclusive) of
the said Code shall, as far as may be, apply
to such trials:

Provided that in the case of any
conviction in a summary trial under this
section, it shall be lawful for the Magistrate
to pass a sentence of imprisonment for a
term not exceeding one year and an amount
of fine exceeding five thousand rupees:

Provided further that when at the
commencement of, or in the course of, a
summary trial under this section, it appears
to the Magistrate that the nature of the case
is such that a sentence of imprisonment for
a term exceeding one year may have to be
passed or that it is, for any other reason,
undesirable to try the case summarily, the
Magistrate shall after hearing the parties,
record an order to that effect and thereafter
recall any witness who may have been
examined and proceed to hear or rehear
the case in the manner provided by the said
Code.

(2) The trial of a case under this
section shall, so far as practicable,
consistently with the interests of justice, be
continued from day to day until its
conclusion, unless the Court finds the
adjournment of the trial beyond the
following day to be necessary for reasons
to be recorded in writing.

(3) Every trial under this section
shall be conducted as expeditiously as
possible and an endeavour shall be made to
conclude the trial within six months from
the date of filing of the complaint."

6. Similarly, the process for
issuing summons and taking evidence was
also provided in the Act, 1881 and
provision of appeal is provided u/s 148 of
the Act, 1881, against the order of
conviction u/s 138 of the Act, 1881 with the
caveat
that
notwithstanding
anything
contained in the Cr.P.C. Therefore, if a
complaint is dismissed, that order will not
be appealable u/s 148 of the Act, 1881. The
only remedy available for the complaint is
filing a revision.

7. From the perusal of the
second proviso of Section-143 of the Act,
1881, it is clear, if the Magistrate thinks
that the case is of such nature that a
sentence of imprisonment exceeding one
year may have to pass, or for any other
reason, it is undesirable to try the
summary. In that case, the Magistrate, after
recording his reason, will proceed to hear
the case as per the procedure provided for
the summons case in Cr.P.C. Therefore, it is
clear if the Magistrate has not recorded
any reason to convert the trial from
summary to summons case, and then the
summary trial procedure will continue.

8. The Apex Court in the
Expeditious Trial of Cases U/s 138 of N.I.
Act, 1881 in RE Suo Motu Writ Petition
(Crl.) No.2 of 2020, decided on 16.04.2021,
also observed in paragraph no.24.1 that
before converting a complaint case u/s 138
of the Act, 1881 from summary trial to
summons case, the Magistrate has to
record reasons and discuss the scheme of
the Act, 1881 in para nos. 9 and 20 of the
judgment. Paragraphs nos.9, 20, 24.1 of
722 INDIAN LAW REPORTS ALLAHABAD SERIES
the judgement of Expeditious Trial of Cases
(supra) are being mentioned as under:

"9. Section 143 of the Act has
been introduced in the year 2002 as a stepin aid for quick disposal of complaints filed
under Section 138 of the Act. At this stage,
it is necessary to refer to Chapter XXI of
the Code which deals with summary trials.
In a case tried summarily in which the
accused does not plead guilty, it is
sufficient for the Magistrate to record the
substance of the evidence and deliver a
judgment, containing a brief statement of
reasons for his findings. There is a
restriction that the procedure for summary
trials under Section 262 is not to be applied
for any sentence of imprisonment exceeding
three months. However, Sections 262 to 265
of the Code were made applicable "as far
as may be" for trial of an offence under
Chapter XVII of the Act, notwithstanding
anything contained in the Code. It is only in
a case where the Magistrate is of the
opinion that it may be necessary to
sentence the accused for a term exceeding
one year that the complaint shall be tried
as a summons trial. From the responses of
various High Courts, it is clear that the
conversion by the trial courts of complaints
under Section 138 from summary trial to
summons trial is being done mechanically
without reasons being recorded. The result
of such conversion of complaints under
Section 138 from summary trial to
summons trial has been contributing to the
delay in disposal of the cases. Further, the
second proviso to Section 143 mandates
that the Magistrate has to record an order
spelling
out
the
reasons
for
such
conversion. The object of Section 143 of the
Act is quick disposal of the complaints
under Section 138 by following the
procedure prescribed for summary trial
under the Code, to the extent possible. The
discretion conferred on the Magistrate by
the second proviso to Section 143 is to be
exercised with due care and caution, after
recording reasons for converting the trial
of the complaint from summary trial to
summons trial. Otherwise, the purpose for
which Section 143 of the Act has been
introduced would be defeated. We accept
the suggestions made by the learned Amici
Curiae in consultation with the High
Courts. The High Courts may issue
practice directions to the Magistrates to
record reasons before converting trial of
complaints
under
Section
138
from
summary trial to summons trial in exercise
of power under the second proviso to
Section 143 of the Act.

20. Section 143 of the Act
mandates that the provisions of summary
trial of the Code shall apply "as far as may
be" to trials of complaints under Section
138. Section 258 of the Code empowers the
Magistrate to stop the proceedings at any
stage for reasons to be recorded in writing
and pronounce a judgment of acquittal in
any summons case instituted otherwise than
upon complaint. Section 258 of the Code is
not applicable to a summons case instituted
on a complaint. Therefore, Section 258
cannot come into play in respect of the
complaints filed under Section 138 of the
Act. The judgment of this Court in Meters
& Instruments [Meters & Instruments (P)
Ltd. v. Kanchan Mehta, (2018) 1 SCC 560 :
(2018) 1 SCC (Civ) 405 : (2018) 1 SCC
(Cri) 477] insofar as it conferred power on
the trial court to discharge an accused is
not good law. Support taken from the words
"as far as may be" in Section 143 of the Act
is inappropriate. The words "as far as may
be" in Section 143 are used only in respect
of applicability of Sections 262 to 265 of
the Code and the summary procedure to be
followed for trials under Chapter XVII.
Conferring power on the court by reading
certain
words
into
provisions
is
4 All. Abhishek Mishra @ Pintu Vs. State of U.P. & Anr.
723
impermissible. A Judge must not rewrite a
statute, neither to enlarge nor to contract it.
Whatever temptations the statesmanship of
policy-making
might
wisely
suggest,
construction must eschew interpolation and
evisceration. He must not read in by way of
creation [ J. Frankfurter, Of Law and Men :
Papers
and
Addresses
of
Felix
Frankfurter.] . The Judge's duty is to
interpret and apply the law, not to change it
to meet the Judge's idea of what justice
requires [Duport Steels Ltd. v. Sirs, (1980)
1 WLR 142 : (1980) 1 All ER 529 (HL)] .
The court cannot add words to a statute or
read words into it which are not there
[Union
of
India
v.
Deoki
Nandan
Aggarwal, 1992 Supp (1) SCC 323 : 1992
SCC (L&S) 248] .

24.1. The High Courts are
requested to issue practice directions to the
Magistrates to record reasons before
converting trial of complaints under
Section 138 of the Act from summary trial
to summons trial."

9. Therefore, it is clear from the
above legal position that unless this case is
converted from summary trial to summons
trial by the specific order of the Magistrate,
procedure of summons trial mentioned in
Chapter XX of Cr.P.C. cannot be adopted
while trying a case as summary trial.
Therefore, if the case is being tried strictly
as a summary trial as per the Chapter XXI
of Cr.P.C., then the procedure mentioned in
Chapter XX of Cr.P.C. from Sections 251 to
259 of Cr.P.C. would not be applicable.

10. Therefore, this Court is of the
view if a complaint u/s 138 of the Act, 1881
is dismissed for want of prosecution, then
the same cannot be deemed to be acquittal
u/s 256(1) of Cr.P.C. because Section
256(1) Cr.P.C. falls under the procedure of
summons case, therefore, against the
dismissal of the complaint, no appeal lies
u/s 378(4) Cr.P.C. only the remedy against
the rejection of a complaint, whether on
merit or for want of prosecution, is filing a
revision.

11. Apex Court in the case of
Expeditious Trial of Cases (supra) also
observed that proceeding under the Act,
1881 is a summary proceeding and
complete the procedure has been provided
under
the
Act,
1881,
therefore
all
provisions of Cr.P.C. are not applicable. So
far as the judgement relied upon by learned
counsel for the applicant is concerned, in
that case, it is observed that dismissal of
the complaint in the absence of the
complainant will amount to acquittal of
accused u/s 256(1) Cr.P.C. and that order
can be challenged only in appeal under
section378(4)Cr.P.C., is contrary to the
observations of the Hon'ble Supreme Court
as well as the scheme of the Act, 1881.

12.
Therefore,
this
Court
respectfully disagreed with the coordinate
Bench's judgement in Vinay Kumar's case
(supra). Paragraph no.14 of the Vinay
Kumar's case (supra) is being quoted as
under:

"14) FROM the perusal of the
aforesaid Section it is clear that if an order
of acquittal has been passed a case
instituted upon a complaint then on an
application made before the High Court by
the complainant the high Court can grant
special leave to appeal from an order of
acquittal. Thus in the present case against
the dismissal of complaint which amounted
to
acquittal
of
accused
complainant
respondent No. 2 Sanjay kumar Dixit had
got the right to file special leave to appeal
under Section 378 (4) Cr. P. C. in this
Court, which admittedly has not been done.
Section 401 (4) Cr. P. C. provides that
under the Code of Criminal Procedure if an
appeal lies and no appeal is brought no
proceeding by way of revision shall be
entertained at the instance of the party who
724 INDIAN LAW REPORTS ALLAHABAD SERIES
could have appealed. The said sub-section
is quoted below: high Courts powers of
revision. 401. (4) Where under this Code an
appeal lies and no appeal is brought, no
proceeding by way of revision shall be
entertained at the instance of the party who
could have appealed."

13. In this view of the matter,
judicial propriety demands that this matter
be referred to a Larger Bench to decide
these questions:

(i) Whether the dismissal of
complaint u/s 138 of the Act, 1881 for want
of prosecution will amount to acquittal u/s
256(1) Cr.P.C., and same can be challenged
in appeal u/s 378(4) Cr.P.C., or is that
order reviseable u/s 397 Cr.P.C.?

(ii) Whether the case of Vinay
Kumar (supra) has been correctly decided
by holding that against the dismissal of
complaint u/s 138 of the Act, 1881, appeal
lies u/s 378(4) Cr.P.C. ,not the revision?

14. The office is directed to place
the record of this case before the Hon'ble
Chief Justice for appropriate orders.

15. List this case after the
decision of the Larger Bench.

16.
In
the
meantime,
the
proceedings of the trial court shall remain
stayed."

10. At the very outset, it would be apt
to quote certain provisions relevant to the
matter which are as under:-

(A) Section 143 of the N.I. Act,
1881

"143. Power of Court to try
cases summarily- (1) Notwithstanding
anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), all offences
under this Chapter shall be tried by a
Judicial Magistrate of the first class or by a
Metropolitan Magistrate and the provisions
of sections 262 to 265 (both inclusive) of
the said Code shall, as far as may be, apply
to such trials:

Provided that in the case of any
conviction in a summary trial under this
section, it shall be lawful for the Magistrate
to pass a sentence of imprisonment for a
term not exceeding one year and an amount
of fine exceeding five thousand rupees:

Provided further that when at the
commencement of, or in the course of, a
summary trial under this section, it appears
to the Magistrate that the nature of the case
is such that a sentence of imprisonment for
a term exceeding one year may have to be
passed or that it is, for any other reason,
undesirable to try the case summarily, the
Magistrate shall after hearing the parties,
record an order to that effect and thereafter
recall any witness who may have been
examined and proceed to hear or rehear
the case in the manner provided by the said
Code.

(2) The trial of a case under this
section shall, so far as practicable,
consistently with the interests of justice, be
continued from day to day until its
conclusion, unless the Court finds the
adjournment of the trial beyond the
following day to be necessary for reasons
to be recorded in writing.

(3) Every trial under this section
shall be conducted as expeditiously as
possible and an endeavour shall be made to
conclude the trial within six months from
the date of filing of the complaint."

(B) Section 148 of the N.I. Act,
1881

"Power of Appellate Court to
order payment pending appeal against
conviction- (1) Notwithstanding anything
contained in the Code of Criminal
Procedure, 1973, in an appeal by the
drawer against conviction under section
138, the Appellate Court may order the
appellant to deposit such sum which shall
4 All. Abhishek Mishra @ Pintu Vs. State of U.P. & Anr.
725
be a minimum of twenty percent of the fine
or compensation awarded by the trial
Court:

Provided that the amount payable
under this sub-section shall be in addition
to any interim compensation paid by the
appellant under section 143A.

(2) The amount referred to in subsection (1) shall be deposited within sixty
days from the date of the order, or within
such further period not exceeding thirty
days as may be directed by the Court on
sufficient cause being shown by the
appellant.

(3) The Appellate Court may
direct the release of the amount deposited
by the appellant to the complainant at any
time during the pendency of the appeal:

Provided that if the appellant is
acquitted, the Court shall direct the
complainant to repay to the appellant the
amount so released, with interest at the
bank rate as published by the Reserve Bank
of India, prevalent at the beginning of the
relevant financial year, within sixty days
from the date of the order, or within such
further period not exceeding thirty days as
may be directed by the Court on sufficient
cause being shown by the complainant."

(C) Section 203 of the Code of
Criminal Procedure, 1973

"203. Dismissal of complaint- If,
after considering the statements on oath (if
any) of the complainant and of the
witnesses and the result of the inquiry or
investigation (if any) under section 202, the
Magistrate is of opinion that there is no
sufficient ground for proceeding, he shall
dismiss the complaint, and in every such
case he shall briefly record his reasons for
so doing."

(D) Section 256 of the Code of
Criminal Procedure, 1973

"256. Non-appearance or death
of complainant- (1) If the summons has
been issued on complaint, and on the day
appointed for the appearance of the
accused, or any day subsequent thereto to
which the hearing may be adjourned, the
complainant
does
not
appear,
the
Magistrate shall, notwithstanding anything
hereinbefore contained, acquit the accused,
unless for some reason he thinks it proper
to adjourn the hearing of the case to some
other day:

Provided
that
where
the
complainant is represented by a pleader or
by the officer conducting the prosecution or
where the Magistrate is of opinion that the
personal attendance of the complainant is
not necessary, the Magistrate may dispense
with his attendance and proceed with the
case.

(2) The provisions of Sub-Section
(1) shall, so far as may be, apply also to
cases where the non-appearance of the
complainant is due to his death."

11. The reference and stress herein is
given on the two provisions of the Code of
Criminal
Procedure.
The
difference
between Section 203 Cr.P.C. and Section
256 Cr.P.C. is of the stage of passing of an
order therein. Under Section 203 Cr.P.C. an
order is passed prior to taking of
cognizance and summoning whereas the
exercise of power under Section 256
Cr.P.C. is subsequent to issuance of
summons. The admitted position in the
present matter is that the order dated
13.03.2019 passed by the Additional Chief
Judicial Magistrate- IInd, Jaunpur is an
order prior to issuance of summons and
thus is an order passed under Section 203
Cr.P.C. The stage of Section 256 Cr.P.C.
has yet not arisen in the present matter and
thus the question whether an order
dismissing a complaint under Section 138
of the N.I. Act for want of prosecution will
amount to acquittal under Section 256 (1)
726 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C. and whether the same can be
challenged in appeal under Section 378 (4)
Cr.P.C. or is an order revisable under
Section 397 Cr.P.C. does not arise in the
present case. The said question is the first
question in the reference.

12. In so far as the second question
challenging
the
correctness
of
the
judgement of Vinay Kumar Vs. State of
U.P.: Criminal Revision No. 3426 of 2005,
decided on 04.09.2007 by a learned Single
Judge is concerned, does not have
relevance in the present matter since in the
said case although the complaint was
dismissed in default vide order dated
05.02.2004 passed by the trial court
concerned but the same was after the
accused therein were summoned for
offence under Section 138 of the N.I. Act,
under Section 204 Cr.P.C. vide order dated
19.09.2002. The order thus therein was an
order under Section 256 Cr.P.C. and not
under Section 203 Cr.P.C. The second
question thus also does not arise for
consideration in the present matter.

13. The reference thus needs no
deliberation on the issues in it and does not
deserve to be answered.

14. The reference thus in the light of
the above discussion is returned back to the
appropriate Bench.

15. The matter is directed to be listed
before the appropriate Bench having roster
in the week commencing 15th April, 2025.

----------
(2025) 4 ILRA 726
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.04.2025

BEFORE
THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482 No. 4859 of 2013

Ramesh Kumar Srivastava & Anr.
 ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sanjay Kumar Srivastava

Counsel for the Respondents:
G.A.

Criminal
Law
-Criminal
Procedure
Code,1973-Section
482-Indian
Penal
Code,1860-Section 325,506-challenge tosummoning order-The case stemmed from
allegations by the complainant that the
applicant no. 2, Doctor had conducted a
negligent surgery, leading to cancer and
later both applicants allegedly attacked
her with a motorcycle during her protestHowever, the FIR was lodged after a delay
of
nearly
a
month,
and
subsequent
departmental inquiry had exonerated the
doctor,
holding
a
private
hospital
responsible-The Court noted the absence
of credible eyewitnesses, the lack of
corroborating medical evidence, and the
verified
presence
of
the
applicants
elsewhere at the time of the alleged
incident-The Court found that the FIR was
filed
with
malafide
intent
after
the
complainant failed in earlier attempts to
implicate
the
applicants
through
departmental
channels-Applying
principles from State of Haryana Vs.
Bhajan Lal and Prashant Bharti Vs. St. of
NCT of Delhi, the court held that the
proceedings
were
malicious
and
constituted
an
abuse
of
the
legal
process.(Para 1 to 30)

The application is allowed. (E-6)

List of Cases cited:

1. St. of Har. Vs Bhajan Lal (1992) AIR 604