# Chhote Lal Singh v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2014) 3 ILRA 1082
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-09-17
- **Case number:** U/S 482/378/407 No. 3613 of 2013
- **Bench:** Ajai Lamba
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhote-lal-singh-v-state-of-u-p-anr-opp-parties-43086
- **Pages:** 4

## Headnote

Cr.P.C.-Section
482-
Quashing
of
summoning order-offence under Section
138
of
negotiable
instruments
Actcheque itself presented after an year-in
view of Section 138(a) after expiry of
period of six month-cheque lost its
validity-moreover
except
on
contingencies of insufficient amount in
account or excesses amount of demand
dishonored cheque-no offence made outproceeding quashed.

Held: Para-14 & 15

## Text

1082 INDIAN LAW REPORTS ALLAHABAD SERIES
and, therefore, it is difficult to accept that
petitioner's service was not satisfactory,
particularly when this aspect was not
considered by competent authority and no
order is said to have been passed
thereupon.

16. In view of the above discussion,
this writ petition deserves to be allowed.

17. In the result, writ petition is
allowed. The competent authority is
directed to consider the claim of petitioner
for
grant
of
selection
grade
and
promotional grade, as the case may be, in
the light of G.O. Dated 3rd June, 1989
and pass a reasoned order within two
months from the date of production of a
certified copy of this order. In case
petitioner is found entitled for such
benefit, all consequential benefits, like
refixation of pay, arrears etc. would be
computed and shall be paid within two
months thereafter.

18. The petitioner shall be entitled to
cost which is quantified to Rs.5000/-
(Five thousand only).
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.09.2014

BEFORE
THE HON'BLE AJAI LAMBA, J.

U/S 482/378/407 No. 3613 of 2013

Chhote Lal Singh ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri S.P. Singh, Sri R.P. Singh

Counsel for the Opp. Parties:
Govt. Advocate
Cr.P.C.-Section
482-
Quashing
of
summoning order-offence under Section
138
of
negotiable
instruments
Actcheque itself presented after an year-in
view of Section 138(a) after expiry of
period of six month-cheque lost its
validity-moreover
except
on
contingencies of insufficient amount in
account or excesses amount of demand
dishonored cheque-no offence made outproceeding quashed.

Held: Para-14 & 15
14. An order of summoning is required
to be passed only after considering the
relevant
material
in
context
of
ingredients of the offence allegedly
committed by an accused. The said
exercise has not been done, as is
apparent from the above-noted facts and
circumstances of the case.

15. Section 138, N.I. Act could have
been invoked only if the two conditions,
in the facts of this case, had been
satisfied viz. if the amount of money
standing to the account of the petitioner
was insufficient to honour the cheque; or
in case the cheque amount exceeded the
amount arranged to be paid from that
account by an agreement made with that
bank. None of the conditions stands
satisfied in this case.

(Delivered by Hon'ble Ajai Lamba, J.)

1. This petition filed under Section
482 of the Code of Criminal Procedure
seeks quashing of order dated 7.7.2011
passed by Additional Chief Judicial
Magistrate, Court No.1 in complaint case
No.897 of 2011 titled 'Manju Gupta Vs.
Chhote Lal Singh' under Section 138 of
the Negotiable Instruments Act, 1881 (for
short 'N.I. Act').

2. Short contention of learned
counsel for the petitioner is that a
negotiable instrument issued by the
petitioner on 12.4.2010 for a sum of
3 All]. Chhote Lal Singh Vs. State of U.P. & Anr.
1083
Rs.2000/-
was
presented
by
the
respondent no.2 on 26.5.2010. The
cheque was dishonored on account of
insufficiency of funds.

3. Respondent no.2 again presented
the cheque on 11.5.2011 which was
returned to respondent no.2 on 19.5.2011
with endorsement by the Bank that the
cheque is out of allocated range.

4. Contention of learned counsel for
the petitioner is that proceedings under
Section 138 of the N.I. Act have been
initiated
in
context
of
negotiable
instrument dated 12.4.2010 presented on
19.5.2011. The negotiable instrument had
already expired. The instrument could
have been presented within six months
only.

5. I have considered the contention
of learned counsel.

6. None has put in appearance for
the respondent despite service and,
therefore, pleadings are being considered
for adjudication.

7. It has become evident that an
already
expired
cheque
had
been
presented by respondent no.2-complainant
for entertainment. The cheque has been
returned with endorsement that the
cheque is out of allocated range.

8. For considering the issue whether
offence under Section 138 of the N.I. Act
has been committed or not, relevant
provisions of Sections 6,13 and 138 of the
N.I. Act need to be considered :

"6. "Cheque".-- A "Cheque" is a bill
of exchange drawn on a specified banker
and not expressed to be payable otherwise
than on demand and it includes the
electronic image of a truncated cheque
and a cheque in the electronic form.

13."Negotiable instrument". - (1) A
"negotiable
instrument"
means
a
promissory note, bill of exchange or
cheque payable either to order or to
bearer.

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;

(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
1084 INDIAN LAW REPORTS ALLAHABAD SERIES
be, to the holder in due course of the
cheque, within fifteen days of the receipt
of the said notice."

9. Perusal of the above reproduced
provisions of the N.I. Act indicate that
"cheque" is a bill of exchange drawn on a
specified banker.

10. Under Section 138 of the N.I.
Act, in case "cheque" 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 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. It has further been
provided in proviso (a) to main provision
that Section 138, N.I. Act shall apply only
if 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.

11. Annexure-3 i.e. endorsement
sent to respondent no.2 by the bank
indicates that the cheque was out of
allocated range.

12. Facts and circumstances of the
case indicate that cheque dated 12.4.2010
was presented on 11.5.2011. The cheque
was not validated for any further period. It
is, therefore, evident that the cheque was
presented beyond the period provided in
Section 138 (a) of the N.I. Act. On expiry
of the cheque, it lost its value as
negotiable instrument. Period of validity
was not extended. It is, therefore, clear
that complaint in regard to the said
cheque could not have been filed for
commission of offence under Section 138
of the N.I. Act. A bare perusal of the
pleadings indicates that no offence, as
alleged, has been committed under
Section 138 of the N.I. Act.

13. This Court has also taken note of
the fact that although the facts and
circumstances of the case were clear on
perusal of the complaint read with
Annexure-3, yet, impugned order of
summoning dated 7.7.2011 has been
passed.
Perusal
of
the
order
of
summoning indicates that relevant facts
and
circumstances
have
not
been
considered. Even if the facts emanating
from the complaint and accompanying
documents had been considered prima
facie it would have become evident that
the
cheque
had
expired.
Such
an
instrument could not have been presented
for encashment. In any case if an expired
cheque is presented by drawee of the
cheque, surely the drawer of the cheque
cannot be proceeded against under
Section 138 of the N.I. Act.

14. An order of summoning is
required
to
be
passed
only
after
considering the relevant material in
context of ingredients of the offence
allegedly committed by an accused. The
said exercise has not been done, as is
apparent from the above-noted facts and
circumstances of the case.

15. Section 138, N.I. Act could have
been invoked only if the two conditions,
in the facts of this case, had been satisfied
viz. if the amount of money standing to
the account of the petitioner was
insufficient to honour the cheque; or in
case the cheque amount exceeded the
amount arranged to be paid from that
account by an agreement made with that
bank. None of the conditions stands
satisfied
in
this
case.
3 All]. Ram Udit Vs. D.D.C. & Ors.
1085

16. In view of the above, the petition
is allowed.

17. Order dated 7.7.2011 passed by
Additional Chief Judicial Magistrate,
Court No.1 in complaint case No.897 of
2011 titled 'Manju Gupta Vs. Chhote Lal
Singh' is hereby quashed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.09.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Consolidation No. 5001 of 1983

Ram Udit ...Petitioner
Versus
D.D.C. & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.S. Pandey

Counsel for the Respondents:
C.S.C., Sri A.S. Chaudhary, Sri P.N. Gupta
Sri R.A. Chaudhary

U.P. Consolidation of Holdings Act 1953Section-48-Scope of interference with
finding
of
facts
by
D.D.C.-chak
allotment-against
proposal
by
ACOobjection filed-on ground having original
holding just adjacent to abadi having
more potential value-while proposed
chak on usar "Barren" land-C.O. And SOC
recorded findings in favor of petitionerD.D.C.
Ignoring
the
principle
of
allotment of chak under section 19 as
well as the objections-arbitrary instead
of doing justice in accordance with lawcommitted error-ignoring fundamental
right of people 300 A of constitutionquashed with direction to decide revision
within 2 month.

Held: Para-33-
Applying the above principles of law
relating to allotment of chak and also
statutory provision, this Court finds that
specific
objection
was
taken
by
petitioner regarding nature of land that
it mostly comprised of Usar and further
that original plot was near Abadi and
main road, yet he has been allotted a
chak at different place, but for rejecting
his objection and setting aside the
orders
passed
by
subordinate
authorities, the DDC has not at all looked
into this objection and has gone to
decide the matter only on the ground
that since initially objection was raised
by petitioner and not by others, against
the
proposed
allotment
of
Chak,
therefore,
scheme
proposed
initially
should be accepted. He has followed a
majoritarian way. He has failed to
consider that right of objection against
allotment of Chak has been conferred
upon aggrieved tenure holder by the
statute. If such objection has been
made, raising valid and relevant issue(s),
it
is
incumbent
upon
consolidation
authorities to decide the same and those
issues cannot be bye-passed or ignored
or omitted on irrelevant considerations,
as has been done by DDC in the case in
hand. The location of chak, its value, are
all interconnected issues. The same
cannot
be
ignored
for
fanciful
conjectures and unmindful whims of
consolidation authorities. It shows mere
arbitrary act on their part, instead of an
attempt to decide the matter by doing
justice in accordance with law with the
poor
tenure
holder
whose
entire
livelihood depends on it. If a chak is
altered by another one which is much
inferior for various reasons, then what
he initially held, it amounts to deprives
him of his valuable property, by giving
another land which is not equivalent as
far as possible, but is apparently inferior
in various ways and thereby he would
stand deprived of his right to property
affecting his constitutional right under
Article
14 read with 300A of the
Constitution
of
India.
Consolidation
authorities are therefore, bound to act
more cautiously and objectively.

Case Law discussed: