# Bobby Anand @ Yogesh Anand v. State of U.P. & Anr

- **Citation:** (2023) 7 ILRA 155
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-17
- **Case number:** Application U/S 482 No. 7631 of 2008
- **Bench:** Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bobby-anand-yogesh-anand-v-state-of-u-p-anr-50393
- **Pages:** 22

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 200, 210, 210(1) & 482 -
Indian Penal Code, 1860 - Sections - 381,
420, 511 & 420 - Negotiable Instrument
Act, 1881- Sections 118, 138, 139 &
142(2) - Application U/s 482 - for quashing
the entire criminal proceedings - FIR - which
was lodged by the opposite party as counter
156 INDIAN LAW REPORTS ALLAHABAD SERIES
blast - offence of Cheating and dishonesty -
dishonour of cheques - investigation - Chargesheet - summoning order - earlier, applicant
moved a complaint to the bank about his two
cheques were stolen from his office and letter
on lodged an FIR u/s 381, 420 r/w 34 IPC at
Mumbai - against the said criminal proceedings
opposite party also approached to the Bombay
High Court obtaining order of anticipatory bails
- and in order to safeguard themselves, a
counter blast opposite party no. 2 maliciously
filed the present complaint in Mathura u/s 138
NI Act, - court finds that, the sanctity of the
judicial process will be seriously eroded if such
attempts are not dealt firmly, - no substance in
the submission made by the learned counsel for
opposite party no. 2 and learned AGA for St.
and also find that case laws relied upon by them
are clearly distinguishable in the facts of the
present case - held, the present proceedings
initiated against the applicant are not only
malicious but also amount to an abuse of
process of court - as such, the proceedings
impugned are liable to be quashed by this court
- accordingly, application is allowed.
(Para - 66, 67, 68)

Application u/s 482 allowed. (E-11)

List of referred Cases: -

## Text

_Characters 0–39,958 of 73,812. This is a partial read: ask again with offset=39958 for what follows._

7 All. Bobby Anand @ Yogesh Anand Vs. State of U.P. & Anr.
155
preliminary assessment rests with the
Board and the Children's Court. This Court
cannot
delve
upon
the
exercise
of
preliminary assessment. This Court will
only examine as to whether the preliminary
assessment has been carried out as required
under law or not. Even the High Court,
exercising revisionary power under Section
102, would test the decision of the Board or
the Children's Court with respect to its
legality or propriety only. In the present
case, the High Court has, after considering
limited material on record, arrived at a
conclusion
that
the
matter
required
reconsideration and for which, it has
remanded the matter to the Board with
further
directions
to
take
additional
evidence and also to afford adequate
opportunity to the child before taking a
fresh decision."

13. Perusal of letter of Principal
Magistrate dated 27.06.2022 clearly states
that after declaring the accused-applicant as
juvenile, he has requested the learned
Additional Chief Judicial Magistrate to
pass appropriate order for sending the
matter to the Juvenile Justice Board and the
learned Magistrate ought to have complied
with requisition request dated 27.06.2022
wherein it was asked to transfer the file of
the instant case to the Juvenile Justice
Board so that Board may transfer the said
file to the Children's Court/POCSO Court
having jurisdiction to try such case against
the accused-applicant in terms of Section
18 (3) of the Act, 2015, but the learned
Additional
Chief
Judicial
Magistrate,
instead of sending the file to the Juvenile
Justice Board, has passed the order
impugned.

14. In view of the facts and
circumstances of the case and the law laid
down as discussed above, the present
application u/s 482 Cr.P.C. is allowed. The
impugned order dated 03.02.2023 passed
by
learned
ACJM,
Khurja,
District
Bulandshahar is hereby set aside.

15. Consequently, the instant case
pending before the learned Magistrate
stands transferred to the Children's Court in
view of Section 18 (3) of Juvenile Justice
(Care & Protection of Children) Act, 2015.
The Magistrate concerned is directed to
send the file of the instant case to the
Juvenile Justice Board/Children's Court
having jurisdiction to try the case against
the applicant in terms of Section 18 (3) of
the Act, 2015.
----------
(2023) 7 ILRA 155
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2023

BEFORE

THE HON'BLE SHIV SHANKER PRASAD, J.

Application U/S 482 No. 7631 of 2008

Bobby Anand @ Yogesh Anand ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Punit Kumar Gupta, Sri A.P. Paul, Sri
Anil Tiwari (Sr. Advocate)

Counsel for the Opposite Parties:
G.A., Sri Rahul Chautrvedi, Sri Suresh
Chandra Pandey

Criminal Law - Criminal Procedure Code,
1973 - Sections 200, 210, 210(1) & 482 -
Indian Penal Code, 1860 - Sections - 381,
420, 511 & 420 - Negotiable Instrument
Act, 1881- Sections 118, 138, 139 &
142(2) - Application U/s 482 - for quashing
the entire criminal proceedings - FIR - which
was lodged by the opposite party as counter
156 INDIAN LAW REPORTS ALLAHABAD SERIES
blast - offence of Cheating and dishonesty -
dishonour of cheques - investigation - Chargesheet - summoning order - earlier, applicant
moved a complaint to the bank about his two
cheques were stolen from his office and letter
on lodged an FIR u/s 381, 420 r/w 34 IPC at
Mumbai - against the said criminal proceedings
opposite party also approached to the Bombay
High Court obtaining order of anticipatory bails
- and in order to safeguard themselves, a
counter blast opposite party no. 2 maliciously
filed the present complaint in Mathura u/s 138
NI Act, - court finds that, the sanctity of the
judicial process will be seriously eroded if such
attempts are not dealt firmly, - no substance in
the submission made by the learned counsel for
opposite party no. 2 and learned AGA for St.
and also find that case laws relied upon by them
are clearly distinguishable in the facts of the
present case - held, the present proceedings
initiated against the applicant are not only
malicious but also amount to an abuse of
process of court - as such, the proceedings
impugned are liable to be quashed by this court
- accordingly, application is allowed.
(Para - 66, 67, 68)

Application u/s 482 allowed. (E-11)

List of referred Cases: -

1. Taruna Batra Vs Shikha of Delhi High Court,
reported in Law Finder Doc Id # 218864,

2. K. Sadanandan Vs Satheesh Kumar & anr.
reported in (2016) 1 NIJ 93,

3. Raj Kumar Khurana Vs St. of (NCT of Delhi),
reported in Law Finder Doc Id # 192011,

4. M/s. PEPSI Foods Ltd Vs Special Judicial
Magistrate reported in Law Finder Doc Id # 7
40157,

5. Omni Plast Pvt. Ltd. Vs Standard Chartered
Bank & ors.reported in Law Finder Doc Id #
659121,

6. Bimal Kumar Nopani Vs St. of U. P. & ors..,
2006 (55) ACC 399.

7. Joitaram K. Patel Vs St. of Guj. & ors.., Manu/
GJ/ 0036/1998
8. Naveen Saxena Vs St. of U.P. & ors.., 2021
(7) ADJ 431

9. Rajeshbhari Muljibhai Patel Vs St. of Guj.
(2020) 3 SCC 794).

10. M.M.T.C. Ltd. & anr.Vs Medchl Chemicals and
pharma (P) Ltd. & anr.(2002) 1 SCC 234),

11. Rathish Babu Unnikrishnan Vs The St. (Govt. of
NCT of Delhi) & ors., Manu/ SC/ 0542/2022.

12. Raj Kumar Khurana VS St. of (NCT OF DELHI)
& anr. reported in (2009) 6 SCC 72

13. M/s Eicher Tractor Ltd. & ors.Vs Harihar Singh
& anr., 2009(1)JIC 245 (SC)

14. M/s. Tilokchand Motichand & ors.Vs H.B.
Munshi & anr., reported in AIR 1970 SC 898;

15. St. of Hary. Vs Karnal Distillery reported in AIR
1977 SC 781;

16. Sabia Khan & ors.Vs St. of U.P. & ors.reported
in (1999) 1 SCC 271,

17. Agriculture & Process Food Products Vs Oswal
Agro Furane & ors.., reported in AIR 1996 SC 1947,

18. King Vs General Commissioner, reported in
(1917) 1 KB 486,

19. Abdul Rahman Vs Prasony Bai & anr., AIR 2003
SC 718;

20. S.J.S. Business Enterprises (P) Ltd. Vs St. of
Bihar & ors.., reported in (2004) 7 SCC 166,

21. G. Jayashree Vs Bhagwandas S. Patel reported
in (2009) 3 SCC 141.

22. Dhananjay Sharma Vs St. of Har. & ors..,
reported in AIR 1995 SC 1795,

23. Sunkara Lakshminarasamma & anr. Vs Sagi
Subba Raju & ors.reported in (2009) 7 SCC 460

24. Afzal & anr. Vs St. of Har. & ors.., reported in
JT 1996 (1) SC 328,

25.
Dhananjay Sharma Vs St. of
Har. &
ors..reported AIR 1995 SC 1795,
7 All. Bobby Anand @ Yogesh Anand Vs. State of U.P. & Anr.
157
26. Sabia Khan & ors.Vs St. of U.P. & ors.., (1999)
1 SCC 271.

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. Heard Anil Tiwari, learned Senior
Counsel assisted by Sri A.P. Paul, learned
counsel for the applicant, Sri Suresh
Chandra Pandey, learned counsel for
opposite party no.2 and learned A.G.A. for
the State.

2. This application under Section 482
Cr.P.C. has been preferred for quashing the
entire proceedings of Case No. 235/IX of
2003 (Dina Nath Chaturvedi Vs. Maa
Sherwali Production and ors), under
Section 138 of N.I. Act, Police Station
Kotwali, District Mathura, pending in the
court of Judicial Magistrate, Mathura.

CASE OF THE APPLICANT:

3. The applicant had given a
complaint letter dated 31.10.2002 with
Oshiwara Police Station, Mumbai wherein
he informed that two cheques bearing No.
210547 and 210546 were stolen from his
office. The applicant has also informed his
bank i.e. Punjab and Sind Bank, Juhu
Branch, Mumbai through the same letter
dated
31.10.2002
(Annexure
No.1),
wherein he informed the bank not to clear
the
above
mentioned
cheques.
On
01.01.2003 a phone call was received from
the Bank that one of the cheques mentioned
in his letter dated 31.10.2002 was presented
before the Bank for clearance. The
applicant immediately approached the
Senior Inspector of Police, Oshiwara and
registered an F.I.R. No. 1/2003 dated
01.01.2003 (Annexure No. 2) against the
respondents under Sections 381, 420 read
with Section 34 I.P.C.

4. On 11.03.2003 as a counter blast to
the aforesaid FIR lodged by the applicant,
respondent no.2 filed a complaint against
the applicant (Annexure No.3) alleging
therein that the applicant borrowed Rs.30
lacs from the complainant 10 years ago and
after settlement, applicant gave Cheque No.
210547 on 13.12.2002 and the same has
been bounced.

5. Earlier on 22.02.1998 the opposite
party no.2 gave an undertaking on the
notary stamp paper stating therein that he
had no title or interest in the firm named as
"M/s. Maa Sherawali Production" and all
assets and liabilities pertaining to the said
firm belongs to applicant, namely, Sri
Bobby Anand @ Yogesh Anand. (Annexure
No.4.).

6. On submission of the said
complaint
by
respondent
no.2,
the
concerned
Magistrate
recorded
the
statement of the complainant under Section
200 Cr.P.C. on 28th March, 2003, which is
contradictory and creates doubt in the
prosecution case (Annexure No.5). After
that on 1st May, 2003, the concerned
Magistrate without perusing the material on
record and without application of mind,
took cognizance thereon and summoned the
applicant
in
a
mechanical
manner
(Annexure No.6).

7. On the other hand, in F.I.R. No.
1/2003 dated 01.01.2003 lodged by the
applicant, the Investigating Officer after
completing investigation under Chapter XII
Cr.P.C. submitted the charge-sheet against
the opposite party no.2 and his associates,
namely, Santosh, Rakesh Chaturvedi and
Manoj Chaturvedi before Xth Metropolitan
Magistrate Court at Andheri, Mumbai in
Criminal Case No. 371/TW/2004. One
accused Santosh arrested by the police on
158 INDIAN LAW REPORTS ALLAHABAD SERIES
22.01.2003 and he was granted bail by the
X Metropolitan Magistrate. Thereafter
opposite party no.2 and other co-accused
persons moved anticipatory bail application
before
the
Sessions
Court,
Greater
Mumbai, and the same was rejected vide
order dated 19.09.2003 (Annexure No.7).
After rejection of anticipatory bail by the
court below, the opposite party no.2 and
other co-accused approached the Hon'ble
High Court, Bombay and the Court passed
a descriptive order mentioning therein that
opposite
party
and
other
co-accused
undertake to deposit the second cheque to
the
Investigating
Officer
forthwith
(Annexure No.8).

8. The opposite party no.2 and other
co-accused did not comply with their own
undertaking given before the Hon'ble
Bombay High Court while obtaining order
of anticipatory bail and in order to
safeguard themselves, as a counter blast
opposite party no.2 maliciously filed the
present complaint before the Judicial
Magistrate, Mathura under Section 138 N.I.
Act.

9. For compliance of the order of
Hon'ble Bombay High Court, Senior Police
Inspector, Oshiwara, Mumbai moved an
application
before
learned
Judicial
Magistrate, Mathura with the request to
allow him to seize the said cheque being
the main ingredient and the relevant
muddemal of the said case pending before
the learned Xth Metropolitan Magistrate at
Andheri, Mumbai (Annexure No.9).

10. The concerned Magistrate, Mathura
without application of mind and without
going through the materials on record, took
cognizance upon the present complaint and
ignoring the procedure of Section 210
Cr.P.C., whose sub-Section (1) provides that
when in a case instituted otherwise than on a
police report (hereinafter referred to as a
complaint case), it is made to appear to the
Magistrate, during the course of the inquiry
or trial held by him, that an investigation by
the police is in progress in relation to the
offence which is the subject- matter of the
inquiry or trial held by him, the Magistrate
shall stay the proceedings of such inquiry or
trial and call for a report on the matter from
the
police
officer
conducting
the
investigation. However, in the present case,
concerned Magistrate, Mathura after taking
cognizance summoned the applicant, which
is wholly illegal, arbitrary and against the
settled principal of law prescribed under
section 210 (1) Cr.P.C.

11.

In
connection
with
above
paragraphs, the applicant further clarifies that
when the issue related with the present
offences is subjudice and pending for
disposal, then the parallel proceedings based
upon the same instrument cannot be instituted
and the same is required to be heard together
in accordance with the provision of Section
210 (1) Cr.P.C.

12. As per a catena of judgment of
Apex Court, it is a clear cut law that in cases
of cross cases between the same parties as a
matter of practice in order to avoid duplicacy
of
proceedings
and
also
to
avoid
contradictory
judgments
coming
from
different court it is desirable that the
proceedings be conducted by the same court
one after another. Therefore, the passing of
the
impugned
order
by
the
learned
Magistrate, Mathura becomes unsustainable
in law and ought to be set aside (Reference:
Nathi Lal and others Vs. State of U.P. and
others, 1990 SCC 145).

13. Even on the point of jurisdiction
the learned Magistrate erred in issuing the
7 All. Bobby Anand @ Yogesh Anand Vs. State of U.P. & Anr.
159
order of process by over looking the factual
matrix of the case. A bare perusal of the
complaint would indicate that it has been
the stand of the complainant i.e. the
respondent herein that practically entire
transaction right from inception had taken
place in Bombay, therefore, he never had
the jurisdiction to issue process. Except for
the deposition of the cheque in Mathura
and the issuance of the notice from there
nothing else has taken place in Mathura. In
fact as per the stand taken by the
complainant
the
intimation
of
the
dishonored cheques have been received by
him in his residence in Bombay, therefore,
it is clear that the cheque was deposited in
Mathura only with the sole purpose of
harassing the applicant by making him to
appear in a remote and distant place, where
he does not have any relations, connections
or base to defend himself. Therefore, on
this ground the order of process is liable to
be set aside as the same has become
instrument of harassment to the applicant
rather than an instrument of justice to the
opposite party. The opposite party no.2 is
operating from Bombay. Even in the past
opposite party no.2 was always based in
Bombay; therefore, he could have very well
filed the complaint in Bombay rather than
filing in Mathura.

14. On the basis of the aforesaid facts
and circumstances, the applicant moved
objection before the learned Magistrate,
Mathura
vide
Application
dated
09.12.2003, but the same was rejected vide
his order dated 28.06.2004 on the ground
that the same is not maintainable and
learned Magistrate ignored the procedure of
Section 210(1) Cr.P.C. (Annexure No.10).

15. Vide order dated 28.06.2004,
learned Magistrate rejected the objection
under Section 204 Cr.P.C. on the ground
that the summoning order cannot be
recalled under Section 204 Cr.P.C. against
the impugned order dated 28.06.2004, the
applicant preferred revision being No. 2886
of 2004, but vide order dated 04.01.2008,
Hon'ble High Court has observed that the
aforesaid relief cannot be granted in the
revision.

16. In the meanwhile, opposite party
no.2 started appearing as accused in the
Magistrate Court at Bombay, where chargesheet has been filed by the Bombay Police.
Learned Public Prosecutor vide his order
dated 07.02.2005 sought issuance of search
warrant for the recovery of cheques which
were stolen by the opposite party no.2 and
ultimately presented in the Bank by
committing an offence of forgery. It is
noteworthy that learned Magistrate was
pleased to issue an order dated 08.02.2005,
whereby he issued a search warrant for the
search of the house and for recovery of
both the cheques in question.

17. The police did not execute the
search warrant, so the applicant had to run
from the pillar to post to secure justice to
himself. The applicant then realized that
nothing would come out so he filed a Misc.
Application before the Principal Judge, at
Sessions Court Mumbai. The learned Judge
was pleased to pass an order dated
21.02.2007, whereby a clear cut direction
was given to the police to execute the
warrant and at the same time the learned
Judge was pleased to direct that upon the
submission of report of execution of the
warrant the trial shall be concluded within a
period of three to four months, there from.
The
said
order
has
already
been
communicated to the learned Magistrate
and he has given necessary direction to the
police for execution thereof. The accused
i.e. opposite party no.2 has participated in
160 INDIAN LAW REPORTS ALLAHABAD SERIES
the proceedings in the Magistrate Court and
they were very well aware of the order
passed by the Sessions Court at Bombay,
but they have chosen to be quite. The
mischief on the part of the accused can be
gauged from the omnibus silence on their
part. The opposite party no.2 never came to
inform the court about the whereabout of
the cheques. He is actually getting benefit
due to the lethargic approach of the police
in executing the warrant. At the same time,
the
applicant,
who
is
standing
as
complainant is handicapped inasmuch as he
has been denied the opportunity of assisting
the court. The learned Magistrate has taken
a view that in a case, which has been
instituted
on
the
police
report,
the
informant does not have the right to address
the court by engaging his advocate. The
learned Magistrate has always insisted
upon the representation through the State
Prosecutor. The applicant is stuck in
vicious circle whereby, he has not been able
to proceed with the matter in Bombay due
to non-execution of the warrant.

Written argument on behalf of the
applicant

18. Learned counsel for the applicant
submits that the cheque in question was
dishonoured and was otherwise payable
through account of and, therefore, as per
Section 142 (2) (b) of the Negotiable
Instrument Act, Mathura Court does not
have the jurisdiction to try the offence.

19. It is submitted that it is admitted
case of opposite party no. 2 in his
statement recorded under Section 200
Cr.P.C. that the cheque was given to him
for discharging collective liability of M/s.
ABC Pictures Pvt. Ltd., M/S. ABC Films,
Kamud Films and personal liability and
Section 138 of N.I. Act cannot be
invoked to discharge collective liability
or liability of third party.

20. Assuming but not admitting,
then also Section 138 of N.I. Act
proceedings
cannot
be
maintained
because ingredients of Section 138 of N.I.
Act are not fulfilled in the facts of the
present case. It is further submitted that
Section 138 N.I. Act does not speak about
the joint/ collective liability. Even in case
of a joint/ collective liability, in case of
individual persons, a person other than a
person who has drawn the cheque on an
account maintained by him, cannot be
prosecuted for the offence under Section
138 N.I. Act.

21. In support of this plea learned
counsel for the applicant has placed
reliance upon the Hon'ble Supreme Court
in the case of Alka Khandu Avhad Vs.
Amar Syamprasad Mishra, reported in
(2021) 2 PUN LR 1. Reliance is also
placed upon the judgement of Bombay
High Court in the case of Hiten Sagar Vs.
IMC Ltd. And another reported in LAW
Finder Doc Id # 9631 wherein it has been
held that "cheque issued by 'A' in
discharge of liability of 'B'- Dishonour of
cheque- 'A' is not liable - 'A' could be
liable if he had taken upon himself the
liability of 'B' by an agreement.

22. It is further submitted that while
filing the present complaint under Section
138
N.I. Act
before
the
concerned
Magistrate at Mathura, opposite party no.2
has wilfully concealed that a criminal
prosecution is pending regarding the same
disputed cheque in the court of Mumbai,
wherein the opposite party no.2 and others
have been charge-sheeted and the charges
have been framed against them under
Sections 381, 420, 511 r/w 34 I.P.C.
7 All. Bobby Anand @ Yogesh Anand Vs. State of U.P. & Anr.
161
Needless to add, the State of Maharashtra
Police tried with respect of the stolen
cheque bearing CC No. 2201205/PW/2006
is pending before the Court of X
Metropolitan
Magistrate
at
Andheri,
Mumbai. In support of his plea, learned
counsel for the applicant has placed
reliance upon the judgment of the Delhi
High Court in the case of Taruna Batra Vs.
Shikha of Delhi High Court , reported in
Law Finder Doc Id # 218864.

23. It is submitted that the disputed
cheque was reported as stolen/ missing to
the drawee bank on 31.10.2002 and stop
payment instruction was given by the
applicant. The cheque was returned with
remark "Stop payment" later on. In such
cases liability under Section 138 N. I. Act
cannot be attracted. For the said plea,
learned counsel for the applicant has placed
reliance upon the judgment of the Kerala
High Court in the case of K. Sadanandan
Vs. Satheesh Kumar & Another reported in
(2016) 1 NIJ 93 as also the judgment of the
Apex Court in the case of Raj Kumar
Khurana Vs. State of (NCT of Delhi),
reported in Law Finder Doc Id # 192011,
wherein it has held that the payment
refused by Bank on the ground that the
account holder has reported the cheques as
lost/ stolen, no offence under Section 138
N.I. Act is made out.

24. It is further submitted that the
summoning order dated 01.05.2003 was a
proforma order and was passed without
application of mind. Issuing of summon by
learned
Magistrate
at
JMFC
Court,
Mathura under Section 138 N.I. Act was
illegal, arbitrary and against the settled
principles of law as he has not considered
the materials on record and has not
scrutinized the evidence on record and has
not given any reason for his conclusion as
there is absence of strict consideration of
the penal provisions under Section 138 N.I.
Act i.e. ingredients to constitute the offence
under Section 138 of N.I.Act. Learned
counsel for the applicant has drawn the
attention of the Court to the judgment of
the Apex Court in the case of M/s. PEPSI
Foods Ltd Vs. Special Judicial Magistrate
reported in Law Finder Doc Id # 40157,
wherein the Apex Court has held in
paragraph no.26 that "Order of Magistrate
summoning the accused should reflect
application of his mind - Mere examination
of two witnesses by complainant is not
sufficient- Magistrate has to carefully
scrutinise the evidence and may even
himself put questions to the complainant
and his witnesses to elicit answers to find
out the truthfulness of allegations or
otherwise and then examine if any offence
was prima facie committed by the accused.

25. Learned counsel for the applicant
submits that it is well settled law that in
absence of necessary averments in the
complaint in question regarding the nature
of
transaction
between
the
parties,
complaint cannot be maintained on sketchy
averments. He further submits that it is well
settled law that the complainant should
narrate the entire history of transaction and
the off shoots of the transactions resulting
in litigation between the parties. If the
complainant does not place all material
facts and details of the cheques, in his
complaint before the Court, cognizance of
his complaint has to suffer. One who does
not come with clean hands has to suffer as
the Hon'ble Supreme Court has declared
that in absence of requisite pleadings in
respect of the transaction concerned (i.e.
absence of the details of the cheques,
absence of the details of the date and the
year of the cheques, absence of the details
of the name of the Bank of the cheques,
162 INDIAN LAW REPORTS ALLAHABAD SERIES
absence of the details of the cheque number
and absence of the time or the year when
the said loan was advanced, etc.) quashing
of complaint under Section 138 N.I. Act is
justified. In support of his plea, learned
counsel for the applicant has placed
reliance upon the judgment of the Hon'ble
Supreme Court in the case of Omni Plast
Pvt. Ltd. Vs. Standard Chartered Bank
and others reported in Law Finder Doc Id
# 659121 .

26. It is lastly submitted by the
learned counsel for the applicant that
the statutory notice under section 138 of
N.I. Act has been sent on 27.01.2003 by
the opposite party no.2 i.e. after the
period of 15 days from the date of
intimation of the dishonour of the stolen
cheque number 210547 from Dena
Bank, Mathura. Therefore, the demand
notice being beyond the period of
limitation
cannot
be
considered
because, the cause of action came to an
end on 25.01.2003 and 26.01.2003.
Hence the complaint filed at Mathura is
liable to be quashed. Reliance in that
regard is placed upon the judgment of
Hon'ble Supreme Court in the case of
Tomy
Jacob
Kattikkaran
Vs.
Dr.
Thomas Man Jaly and another reported
in Law Finder Doc Id # 39681.

27. On the cumulative strength of the
aforesaid, learned counsel for the applicant
submits that the entire criminal proceedings
initiated by the respondent no.2/opposite
party no.2 against the applicant is not only
illegal but is an abuse of process of law, as
such, the same are liable to be quashed by
this Court in exercise of powers under
Section 482 Cr.P.C.

CASE
OF
THE
OPPOSITE
PARTIES

28. Opposite party no.2 filed a
complaint under Section 138 of N.I. Act
against the applicant and his company,
namely,
Maa
Sherawali
Production
Limited. The allegations made in the
complaint are that opposite party no.2 gave
money to the applicant and his firms on
various dates amounting to Rs.30,00,000/-
for which the applicant issued a Cheque
No. 210457 from his account No. 2622 of
Punjab and Sindh Bank, Juhu, Mumbai and
the same has been dishonoured and the
opposite party gave notice to the applicant
to which he denied to pay the same, hence
the present complaint was filed.

29. The present case pertains to a
Cheque dated 13.12.2002, which was
submitted in the Bank on 26.12.2002,
which was dishonoured on 13.01.2003. A
case was filed on 28.03.2003 and the
learned court summoned the applicant on
01.05.2003 and since then the matter is
pending because of dilatory tactics adopted
by the applicant.

30. It would be pertinent to mentioned
that the applicant preferred a Criminal
Revision No. 2886 of 2004 before this
Hon'ble Court against the summoning
order
dated
01.05.2003,
which
was
dismissed as not pressed without granting
any liberty to file afresh applicantion as
such
the
present
application
is
not
maintainable. A copy of the order dated
18.04.2008 passed in Criminal Revision
No. 2886 of 2004.

Written Submission on behalf of
opposite party no.2 as also the submission
of learned A.G.A. for the State

31. The learned counsel for the
opposite parties submit that the applicant
has taken a defence that the cheque in issue
7 All. Bobby Anand @ Yogesh Anand Vs. State of U.P. & Anr.
163
in the present case has been stolen and an
F.I.R. has been registered and he has given
stop payment instruction to the bank. They
have drawn the attention of the judgment of
the Hon'ble Supreme Court in the case of
HMT Watches Ltd. Vs. M.A. Abida and
others (2015) 11 SCC 776, wherein it has
been held that stop payment also attracts
the provisions of Section 138 N.I. Act and
the factual defence of the accused can not
be considered in an application seeking
quashing of the proceedings.

32. The learned counsel for the
opposite parties further submit that in the
cases where the cheque was dishonoured
on
account
of
"stop
payment"
or
instructions of the drawer, a presumption
regarding
the
cheque
being
for
consideration would arise under Section
139 of the Act. Reliance in that regard is
placed upon the judgment of the Hon'ble
Supreme Court in the case of Laxmi
Dyechem Vs. State of Gujarat and others
(2012) 13 SCC 375. They have further
placed reliance upon the judgment of the
Apex Court in the case of Goaplast (P) Ltd.
v. Chico Ursula D'souza and Anr. (2003) 3
SCC 232, where the Apex Court has held
that
'stop
payment
instructions'
and
consequent dishonour of the cheque of a
post-dated cheque attracts provision of
Section 138.

33. The learned counsel for the
opposite parties further submit that the
defence of stolen cheque cannot be taken in
the High Court by means of an application
under Section 482 Cr.P.C. seeking quashing
of the proceedings as the same is a question
of fact as the same has been held by this
Hon'ble Court in the case of Bimal Kumar
Nopani Vs. State of Uttar Pradesh and
others, 2006 (55) ACC 399. The learned
counsel for the opposite parties further
relies upon the judgment of the Gujarat
High Court in the case of Joitaram K.
Patel Vs. State of Gujarat and others,
Manu/ GJ/ 0036/1998 wherein it has held
that defence of stolen cheque cannot be
taken in the High Court by an application
under Section 482 Cr.P.C. seeking quashing
of proceedings as the same is a question of
fact.

34. Learned counsel for the opposite
parties further submit that at any rate,
whenever facts are disputed the truth
should be allowed to emerge by weighing
the
evidence
(Reference:-Rajeshbhari
Muljibhai Patel Vs. State of Gujarat
(2020) 3 SCC 794). This Hon'ble Court in
the case of Naveen Saxena Vs. State of
U.P. and others, 2021 (7) ADJ 431 held
that proceeding cannot be quashed on the
basis of factual defiance and that stop
payment also attracts the provisions of
Section 138 of the N.I. Act.

35. Learned counsel for the opposite
parties further submit that the burden of
proving that there is no existing debt or
liability, is to be discharged in the trial
(Reference:- two judges Bench of the
Hon'ble Supreme Court in the case of
M.M.T.C. Ltd. And another Vs. Medchl
Chemicals and pharma (P) Ltd. And
another (2002) 1 SCC 234).

36. It is then submitted that at the
stage of summoning order, when the factual
controversy is yet to be canvassed and
considered by the trial court. Based upon a
prima facie impression, an element of
criminality cannot be entirely 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. Reliance in
that regard is placed upon the judgment of
164 INDIAN LAW REPORTS ALLAHABAD SERIES
the Apex Court in the case of Rathish
Babu Unnikrishnan Vs. The State (Govt.
of NCT of Delhi) and ors, Manu/ SC/
0542/2022.

On the cumulative strength of the
aforesaid submissions learned counsel for
the opposite parties submits that there is no
illegality or infirmity in the order of
summoning of the applicant passed by the
concerned Magistrate, as also in the order
affirming the same passed by the revisional
court. It is further submitted that the
submissions made by the learned counsel
for the applicant that stolen cheques cannot
be a basis for not constituting an offence of
Section 138 of N.I. Act. As such the present
application is liable to be dismissed.

37. I have considered the submissions
made by the learned counsel for the
applicants and have gone through the
records of the present application.

ISSUE WHETHER SECTION 138
N.I. ACT IS APPLICABLE IN THE
FACTS OF PRESENT CASE AND
THE FINDING AND CONCLUSION
OF THIS
COURT

38. It is admitted position from the
records of the present application that the
applicant has also informed his bank M/s.
Punjab and Sind Bank, Juhu Branch,
Mumbai through the same letter dated
31.10.2002 (Annexure No.1), wherein he
informed the bank not to clear the above
mentioned cheques.

39. For ready reference the averments
made in the letter dated 31.10.2002 are
being quoted herein-below:

"From

AA
SHERAWALI
PRODUCTIONS
Date: 31.10.2002

1/603 Mari Gold C H S LTD

6th Floor New Link Road

Opp Oshiwara Police Station

Andheri (W)

Mumbai-400 053

To

The Manager

Punjab & Sind Bank

Dear Sir/Madam

Re: Our Current Account No: 2664

It has been brought to our notice by
my company accountants that our cheques
nos: 210546 & 210547 which were left
signed by me in the custody of my
employees since I was busy travelling, have
been STOLEN.

I, instruct your bank to immediately
STOP PAYMENT of the above Mention
cheques if the same are received by your
bank, and to immediately inform me of the
same.

In case we discover any other missing
cheques we will inform you of the same.

Kindly do the needful

Yours truly

For SHERAWALI PRODUCTIONS"

40. It is also admitted from record that
on 01.01.2003 a phone call was received
from the Bank that one of the cheques
mentioned in his letter dated 31.10.2002
was presented before the Bank for
clearance.
The
applicant
immediately
approached the Senior Inspector of Police,
Oshiwara and registered an F.I.R. No.
1/2003 dated 01.01.2003 (Annexure No. 2)
against the respondents under Sections 381,
420 read with Section 34 I.P.C.

41. Before expressing any opinion on
the merits of the case set up by both the
parties,
it
would
be
worthwhile
to
reproduce Sections 118, 138 and 139 of the
7 All. Bobby Anand @ Yogesh Anand Vs. State of U.P. & Anr.
165
Negotiable Instrument Act, which are
quoted herein-below:

"118.
Presumptions
as
to
negotiable
instruments.
-Until
the
contrary
is
proved,
the
following
presumptions shall be made:-

(a) of consideration -that every
negotiable instrument was made or drawn
for consideration, and that every such
instrument, when it has been accepted,
indorsed, negotiated or transferred, was
accepted,
indorsed,
negotiated
or
transferred for consideration;

(b) as to date -that every
negotiable instrument bearing a date was
made or drawn on such date;

(c) as to time of acceptance -
that every accepted bill of exchange was
accepted within a reasonable time after its
date and before its maturity;

(d) as to time of transfer -that
every transfer of a negotiable instrument
was made before its maturity;

(e) as to order of indorsements -
that the indorsements appearing upon a
negotiable instrument were made in the
order in which they appear thereon;

(f) as to stamps -that a lost
promissory note, bill of exchange or cheque
was duly stamped;

(g) that holder is a holder in due
course -that the holder of a negotiable
instrument is a holder in due course:

Provided
that,
where
the
instrument has been obtained from its
lawful owner, or from any person in lawful
custody thereof, by means of an offence or
fraud, or has been obtained from the maker
or acceptor thereof by means of an offence
or fraud, or for unlawful consideration, the
burden of proving that the holder is a
holder in due course lies upon him.

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 [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.]
166 INDIAN LAW REPORTS ALLAHABAD SERIES

139. Presumption in favour of
holder.-It shall be presumed, unless the
contrary is proved, that the holder of a
cheque received the cheque of the nature
referred to in section 138 for the discharge,
in whole or in part, of any debt or other
liability."

42. The Legal Fiction created under
Section 138 of the N.I. Act, when a cheque
is returned by the bank unpaid has been
explained as follows:

"A
bare
perusal
of
the
aforementioned provision would clearly go
to show that by reason thereof a legal
fiction has been created. A legal fiction, as
is well known, although is required to be
given full effect, has its own limitations. It
cannot be taken recourse to for any
purpose other than the one mentioned in
the statute itself.

In State of A.P. & Anr. V. A.P.
Pensioners Association reported in (2005)
13 SCC 161, the Apex Court has held as
follows:

"...In
other
words,
all
the
consequences ordinarily flowing from a
rule would be given effect to if the rule
otherwise does not limit the operation
thereof. If the rule itself provides a
limitation
on
its
operation,
the
consequences flowing from the legal fiction
have to be understood in the light of the
limitations prescribed. Thus, it is not
possible to construe the legal fiction as
simply as suggested by Mr. Lalit."

11. Section 138 of the Act
moreover provides for a penal provision. A
penal provision created by reason of a legal
fiction must receive strict construction. (
See R. Kalyani v. Janak C. Mehta & Ors.,
(2009) 1 SCC 516) and DCM Financial
Services Ltd. v. J.N. Sareen & Anr. (2008
(2) KLT 762 (SC) = (2008) 8 SCC 1). Such
a penal provision, enacted in terms of the
legal fiction drawn would be attracted
when a cheque is returned by the bank
unpaid. Such non- payment may either be:
(i) because of the amount of money
standing to the credit of that account is
insufficient to honour the cheque, or (ii) it
exceeds the amount arranged to be paid
from that account by an agreement made
with that bank.

Before a proceeding thereunder is
initiated, all the legal requirements therefor
must be complied with. The court must be
satisfied that all the ingredients of
commission of an offence under the said
provision have been complied with.

The parameters for invoking the
provisions of S.138 of the Act, thus, being
limited, we are of the opinion that refusal
on the part of the bank to honour the
cheque would not bring the matter within
the mischief of the provisions of S.138 of
the Act.

12. The court while exercising its
jurisdiction for taking cognizance of an
offence under S.138 of the Act was required
to consider only the allegations made in the
complaint petition and the evidence of the
complainant and his witnesses, if any."

43. The penal provision, enacted
under Section 138 of the Negotiable
Instrument Act shows that a legal liability
drawn would be attracted when a cheque is
returned by the bank unpaid. It explains
that, such non-payment by the bank may
either be: (i) because of the amount of
money standing to the credit of that account
is insufficient to honour the cheque, or (ii)
it exceeds the amount arranged to be paid
from that account by an agreement made
with that bank. Before a proceeding the
legal requirements mentioned therein must
be complied with and convince the court
that all the ingredients of the offence have
7 All. Bobby Anand @ Yogesh Anand Vs. State of U.P. & Anr.
167
been complied with. Therefore it is clear
that the parameters for invoking the
provisions of S.138 of the Act being
limited, the refusal on the part of the bank
to honour the cheque would not bring the
matter within the mischief of the provisions
of S.138 of the Act.

44.