# Bharat Singh Chauhan v. State of U.P. & Anr

- **Citation:** (2023) 2 ILRA 843
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-02
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bharat-singh-chauhan-v-state-of-u-p-anr-49747
- **Pages:** 4

## Headnote

Criminal Law - Constitution of India, 1950
- Article - 227, - Negotiable Instruments
Act, 1881 - Sections 138 & 139 - Dishonour
of cheque - Quashing of Summoning order as
well as order of revision court - Even 'stop of
payment' instructions issued to bank are held to
make a person liable for offence punishable
under S. 138 - Question whether any money is
paid by the accused to the complainant had
discharged its obligations is a matter of
evidence - Accused has ample opportunity to
Probabilise his defence - Impugned orders
cannot be quashed under the petition preferred
under Article 227 - hence, dismissed.(Para - 8,
9)

Petition Dismissed.(E-11)

List of Cases cited: -

## Text

2 All. Bharat Singh Chauhan Vs. State of U.P. & Anr.
843
the properties left by their deceased father.
They do not contain any stipulation whereunder they seek to convey their title to their
mother and brother. The two sisters were
fully competent to release 'heir undivided
interest in the property in favour of their
mother and brother. When their objective
could be achieved merely by executing a
release deed, there is no reason to think
that they in fact were executing a deed of
conveyance misdescribing it as a release
deed. Question No. 2, therefore, has to be
answered
by
saying
that
on
plain
interpretation, the document dated 9th
March, 1970 was a deed of release and not
a conveyance deed within the meaning of
the Indian Stamp Act.
(Emphasis added)"

14. This judgment was later on
followed by the Co-ordinate Benches of
this Court in State of U.P. vs. Dhanpal
and another; 2008 10 ADJ 604 and
Raghvendra Jeet Singh vs. Board of
Revenue Allahabad and others; 2015 4
ADJ 2015. A deed of assignment is
something different from relinquishment
deed. Former is in the category of transfer
to a third party that should precede by a
notice to the judgment debtor but later is
not such as a case in the light of the law
discussed
above
and,
therefore,
the
judgment in the case of Dhani Ram Gupta
and others vs. Lala Sri Ram and another
(supra) would not apply to the facts of the
case in hand.

15. In view of the above, I do not find
any fault in the orders passed by the Courts
below, impugned herein this petition.
Petition lacks merit and is accordingly,
dismissed, consigned to record.

16. There will be no order as to cost.
----------
(2023) 2 ILRA 843
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Matter Under Article 227 No. 12244 of
2022(Criminal)

Bharat Singh Chauhan ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Saurabh Singh

Counsel for the Respondents:
G.A., Sri Raj Kumar Kesari

Criminal Law - Constitution of India, 1950
- Article - 227, - Negotiable Instruments
Act, 1881 - Sections 138 & 139 - Dishonour
of cheque - Quashing of Summoning order as
well as order of revision court - Even 'stop of
payment' instructions issued to bank are held to
make a person liable for offence punishable
under S. 138 - Question whether any money is
paid by the accused to the complainant had
discharged its obligations is a matter of
evidence - Accused has ample opportunity to
Probabilise his defence - Impugned orders
cannot be quashed under the petition preferred
under Article 227 - hence, dismissed.(Para - 8,
9)

Petition Dismissed.(E-11)

List of Cases cited: -

1. M/s Indus Airways Pvt. Ltd. & ors. Vs M/s Magnum
Aviation Pvt. Ltd. & anr. (2014 12 SCC 539),

2. Pulsive Technologies Prvt. Ltd. Vs St. of Guj.
(2014 (13) SCC 18).

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)
844 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Saurabh Singh, learned
counsel for the petitioner, Sri Raj Kumar
Kesari,
learned
counsel
for
the
complainant, learned A.G.A. for the State
and perused the material on record.

2. The present petition under article
227 of the Constitution of India has been
filed by the petitioner in Complainant Case
No. 895 of 2021 having its Computer No.
1240 of 2021 (Sushil Kumar Vs. Bharat
Singh Chauhan) under Section 138 of the
N.I. Act, Police Station Hapur Nagar,
District- Hapur, pending in the court of
Chief Judicial Magistrate, Hapur for quash
the summoning order dated 16.9.2021
passed by the Chief Judicial Magistrate,
Hapur as well as the impugned order dated
22.07.2022 passed by the Sessions Court,
Hapur in Criminal Revision No. 146 of
2021 whereby the summoning order passed
by the learned Magistrate has been
affirmed.

3. The factual matrix of the case are
that the complainant/respondent no.2 Sunil
Kumar Chauhan filed a complaint to the
court below under section 138 of the N.I.
Act with the averment that the opposite
parties had issued a cheque of Rs. 2 lacs in
his favour in discharge of debt received by
opposite party from the complainant in
March, 2016. The complainant had lent Rs.
2 lacs to opposite party on his request, he
had withdrawn the same from the account
of his wife Sunita Chauhan from two
different dates. The complainant had
presented the said cheque to his banker on
29.12.2020 but the cheque was dishonoured
with the advise of banker with endorsement
"Payment
stop
by
withdrawn".
The
complainant has informed the accused
about this, he again presented the cheques
on 19.01.2021 at S.B.I. Hapur Branch
before his banker but same was again
dishonoured with endorsement "Payment
stop by the drawer". Thereafter, he issued
notice to the accused demanding payment
of the amount of cheque but accused did
not pay any heed and the complaint was
filed within statutory period.

4. The trial court has passed
impugned
summoning
order
dated
16.09.2021, placing reliance on statement
of the complainant under section 200
Cr.P.C. and statement of witness under
section 202 Cr.P.C. as well as documents
available on record. The said summoning
order section 200 Cr.P.C. was challenged
by accused/opposite party before Sessions
Court. However, Sessions Court dismissed
the revision filed against the summoning
order dated 22.07.2022 and affirmed the
summoning order passed by the learned
trial judge in the present petition. Opposite
party-accused has challenged the orders of
both the court.

5. Learned counsel for the petitioner
submitted that the facts giving rise to the
instant application are that the applicant
(Bhatija) and the opposite party no. 2
(Chacha) are related as uncle and nephew
and had cordial relationship. He further
submitted that there was an on-going
family dispute between the opposite party
no. 2 and the father of the applicant
regarding some property and bank locker.
As such, the opposite party no. 2 for the
reason of getting out of the dispute
amicably, demanded an amount to the tune
of Rs. 2,00,000/- (Two Lakh) and in
pursuance of the same, promised to stay out
of the disputed shares in favour of
applicant's father namely Ashish Singh
Chauhan. He submitted that for the reason
aforesaid, applicant provided a signed
cheque dated 22.12.2020 bearing cheque
no. 000001 of HDFC Bank, Branch- Opp
2 All. Bharat Singh Chauhan Vs. State of U.P. & Anr.
845
BSA College, Gaushala Road, Mathura of
Rs. 2,00,000/- to the opposite party no. 2.
But, after receiving the aforesaid cheque
the intention of the opposite party no. 2
changed drastically and an undue demand
of more money and share in the property
was made by him. He submitted that the
applicant being aware about the evil
intentions of the opposite party no. 2
moved an appropriate application before
his concerning HDFC bank and got the
payment of the aforesaid Cheque stopped.
It is further submitted that the parties are
close relatives and the said cheque was
issued by the petitioner to the respondent
no. 2 as a security, pursuant to some
compromise entered between the parties
regarding division of family property but
complainant failed to honour the said
compromise and by that reason the
payment of cheque was stopped by the
petitioner with bona fide intention. Learned
counsel for the petitioner has cited Section
138 N.I. Act under Chapter XVII.

138
Dishonour
of
cheque
for
insufficiency, etc., of funds in the account.
Where any cheque drawn by a person on an
account maintained by him with a banker
for payment of any amount of money to
another person from out of that account for
the discharge, in whole or in part, of any
debt or other liability, is returned by the
bank unpaid, either because of the amount
of money standing to the credit of that
account is insufficient to honour the cheque
or that it exceeds the amount arranged to
be paid from that account by an agreement
made with that bank, such person shall be
deemed to have committed an offence and
shall, without prejudice to any other
provisions of this Act, be punished with
imprisonment for 19 [a term which may be
extended to two years], or with fine which
may extend to twice the amount of the
cheque, or with both: Provided that nothing
contained in this section shall apply
unless?

(a) the cheque has been presented to
the bank within a period of six months from
the date on which it is drawn or within the
period of its validity, whichever is earlier;

(b) the payee or the holder in due
course of the cheque, as the case may be,
makes a demand for the payment of the
said amount of money by giving a notice in
writing, to the drawer of the cheque, 20
[within thirty days] of the receipt of
information
by
him
from
the
bank
regarding the return of the cheque as
unpaid; and

(c) the drawer of such cheque fails to
make the payment of the said amount of
money to the payee or, as the case may be,
to the holder in due course of the cheque,
within fifteen days of the receipt of the said
notice.

Explanation.? For the purposes of this
section, "debt or other liability" means a
legally enforceable debt or other liability.]

6. He lastly submitted that dishonour
of cheque on the ground that drawer has
stopped payment of cheque and that is not
included in section 138 of the N.I. Act as a
ground for initiating prosecution and said
cheque was not issued in discharge of any
debt or other liability which is precondition
for initiating prosecution under section 138
of the Act.

7. Per contra, learned counsel for the
complainant/respondent no. 2 submitted
that dishonour of cheque due to stoppage of
payment instructed to the banker is
included as a ground for prosecution under
section 138 of the Act. Section 139 of the
Act provides that it shall be presumed,
unless the contrary is proved, that the
holder of the cheque of the nature referred
846 INDIAN LAW REPORTS ALLAHABAD SERIES
to in section 138 for the discharge, in whole
or in part, to any debt or other liability.

He further submitted that there is no
illegality or irregularity or jurisdictional error
in the impugned orders passed by the learned
trial court as well as learned Revisional Court
and disputed question of fact cannot be gone
into while deciding the petition under Article
227 of the Constitution of India.

8. M/s. Indus Airways Pvt. Ltd. &
Ors Versus M/s. Magnum Aviation Pvt.
Ltd. & Anr. (2014) 12 SCC 539 has interalia held that it is settled proposition of law, if
no legal liability exists on the date of cheque
was issued then offence under Section 138 of
the N.I. Act would not be attracted with
respect to the said cheque. The explanation
appended to Section 138 explains the
meaning of the expression 'debt or other
liability' for the purpose of Section 138. This
expression means a legally enforceable debt
or other liability. Section 138 treats dishonour
of cheque due to default of drawer, as an
offence, if the cheque has been issued in
discharge of any debt or other liability
incurred by him. The explanation leaves no
manner of doubt that to attract an offence
under Section 138, there should be legally
enforceable debt or other liability subsisting
on the date of drawal of the cheque. In other
words, drawal of the cheque in discharge of
existing or past adjudicated liability is sine
qua non for bringing home an offence under
Section 138 in Pulsive Technologies P.Ltd
Vs. State Of Gujarat & Ors Hon'ble Supreme
Court on 22.08.2014 observed that Even
"stop payment" instructions issued to the
bank are held to make a person liable for
offence punishable under Section 138 of the
NI Act in case cheque is dishonoured on that
count. Once the cheque is issued by the
drawer, a presumption under Section 139
must follow and merely because the drawer
issues a notice to the drawee or to the bank
for stoppage of the payment, it will not
preclude an action under Section 138 of the
NI Act by the drawee or the holder of the
cheques in due course, if the accused shows
that in his account there were sufficient
funds to clear the amount of the cheque at
the time of presentation of the cheque for
encashment at the drawer bank and that the
stop-payment notice had been issued
because of other valid causes including that
there was no existing debt or liability at the
time
of
presentation
of
cheque
for
encashment, then offence under Section
138 would not be made out. The important
thing is that the burden of so proving would
be on the accused. Thus, a court cannot
quash a complaint on this ground. Whether
any money is paid by the accused to the
complainant is a matter of evidence. The
accused
has
ample
opportunity
to
probabilise his defence.

9. In the light of above discussions and
observation of judgments of the Hon'ble
Supreme Court the present petition under
Article 277 of the Constitution of India is
devoid of merit or any force is liable to be
dismissed.

10. The petition is dismissed and the
impugned order is affirmed accordingly.
----------
(2023) 2 ILRA 846
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.02.2023

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 1181 of 2003

Shailendra Singh ...Appellant
Versus
State of U.P. ...Respondent