# Deepak Goel v. State of U.P. & Anr

- **Citation:** (2013) 2 ILRA 669
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-14
- **Case number:** Criminal Misc. Application No.16440 of 2013
- **Bench:** Ramesh Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-goel-v-state-of-u-p-anr-42626
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section 482-
Quashing of criminal proceeding-offence
under Section 138 of N.I. Act. ground of
challenge cheque dishonored not for want
of sufficient amount in account of drawerbut payment was stopped as the cheque
misplaced-hence no offence under section
138 made out-held-once liberty to pay the
amount of cheque given-not availed by
applicant-question of fact whether cheque
lost on payment stopped-can be decided
only during Trail-application rejected.

Held: Para-8
From a perusal of the record, it is apparent
that the applicant has a liability to make
payment to complainant for which he had
issued the cheque in question in favour of
complainant and he has not denied the his
signature on the cheque in question. The
defence set up by the applicant with respect
to the lost of cheque cannot be adjudicated
by this Court at this stage.
Case Law discussed:
670 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
(2009) 2 SCC (Cri) 936; (2009) 1 SCC (Cri.)
567; (2008) 3 SCC (Cri.); JT 1998 (2) SC 198

## Text

2 All] Deepak Goel Vs. State of U.P. & Anr.
669
process of wrong recording of the names
in the revenue records. Without their
collusion, no one can dare to get entered
their names in the revenue records
without there being any valid titles. The
records are always kept in the custody of
the revenue authorities and if the
tampering is made in their records, it can
only be done either by the officers of the
revenue department or with the collusion
with the officials of the department with
whom records are kept.

17. In view of the observation made by
the Apex Court in Anil Baipadithaya and
Others Vs. State of Karnataka and Others
AIR 1996 SC 432, it is expected that action is
not only to be taken against the persons, but
also against those who have been found
involved in this process. Assuming the entries
are bogus and forged, as alleged, but the same
are of long duration, the same should not be
expunged without any discussion and without
any notice, unless it is uncontroverted. It is
very often said justice is not only to be done,
but it appears to have been done.

18. Taking note of that, the Principal
Secretary, Revenue, U.P. at Lucknow is
directed to issue a circular in this regard
requiring the revenue officers not to pass such
types of cryptic orders without there being any
notice and without assigning any reason. He is
also directed to make a penal provision in the
aforesaid circular for the erring officials, in
whose connivance names of the persons who
have no title are recorded and are permitted to
continue for a long period. He is also directed
either to file compliance report before this
Court within a period of two months or give
the reasons for not complying the same.

19. The Registry of this Court is directed
to intimate this order to the Principal Secretary,
Revenue, U.P. at Lucknow for compliance.

20. List this matter, only for having
the version of the Principal Secretary,
Revenue, U.P. at Lucknow, after three
months.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.05.2013

BEFORE
THE HON'BLE RAMESH SINHA, J.

Criminal Misc. Application No.16440 of 2013
(U/s 482 Cr. P.C.)

Deepak Goel . ..Applicant
Versus
State of U.P. & Anr.
 ...Respondents

Counsel for the Petitioner:
Sri Satish Kumar Tyagi

Counsel for the Respondents:
A.G.A.

Code of Criminal Procedure-Section 482-
Quashing of criminal proceeding-offence
under Section 138 of N.I. Act. ground of
challenge cheque dishonored not for want
of sufficient amount in account of drawerbut payment was stopped as the cheque
misplaced-hence no offence under section
138 made out-held-once liberty to pay the
amount of cheque given-not availed by
applicant-question of fact whether cheque
lost on payment stopped-can be decided
only during Trail-application rejected.

Held: Para-8
From a perusal of the record, it is apparent
that the applicant has a liability to make
payment to complainant for which he had
issued the cheque in question in favour of
complainant and he has not denied the his
signature on the cheque in question. The
defence set up by the applicant with respect
to the lost of cheque cannot be adjudicated
by this Court at this stage.
Case Law discussed:
670 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
(2009) 2 SCC (Cri) 936; (2009) 1 SCC (Cri.)
567; (2008) 3 SCC (Cri.); JT 1998 (2) SC 198

(Delivered by Hon'ble Ramesh Sinha, J.)

1. Heard Sri S.K. Tyagi, learned
counsel for the applicant and learned
A.G.A. for the State.

2. This 482 Cr.P.C. application has
been filed with a prayer to quash the
entire proceedings of Complaint Case No.
2120 of 2011 under Section 138 N.I. Act,
police station Sadar Bazar Meerut,
District Meerut pending in the Court of
A.C.J.M., Court No.6, Meerut.

3. Brief facts of the case are that a
complaint has been filed by Sanjay Agarwalopposite party no.2 (hereinafter referred to as
the complainant) against the applicant alleging
that on 4.12.2004, the applicant along with his
uncle, namely, Sri P.D. Agarwal had come to
the shop of the complainant and purchased
some items for his house such as plywood,
mica etc. after making the payment of the
same went away. Thereafter on 14.12.2004,
the applicant along with his uncle Sri P.D.
Agarwal again came to the shop of
complainant and purchased some goods for
his house amounting to Rs. 2,25,106/- out of
which Rs. 106/- was paid by him in cash and
for remaining amount, i.e., Rs. 2,25,000/- he
has given Cheque No. 250468 dated
15.12.2004 of the H.D.F.C. bank Ltd. in the
presence of his uncle P.D. Agarwal and one
Aman Gupta and had stated that the said
cheque would be encashed on the presentation
before the bank. On 15.12.2004, when
complainant was going to place the said
cheque for its encashment, the uncle of the
applicant P.D. Agarwal had asked him on
phone not to place the said cheque for
encashment as the applicant does not have
sufficient fund in his account and further
asked him to place the said cheque in March,
2005
for
encashment.
Thereafter
the
complainant produced the said cheque
through
its
banker
on
1.3.2005
for
encashment but the same was dishonoured by
the concerned bank and a memo dated
5.3.2005 was sent with an endorsement that
payment was stopped by the drawer. When
the said cheque was dishonoured, the
complainant gave a notice to the applicant
through his counsel on 19.3.2005 which was
replied by the applicant through his counsel
on 24.3.2005, hence the present complaint has
been filed by complainant alleging that the
applicant has no intention to pay the amount
in question and has deliberately issued the
cheque in question on 15.12.2004 and gave a
false advertisement in the newspaper that his
cheque has been lost.

4. In the present complaint, the learned
Magistrate has recorded the statement of the
complainant and Sri P.D. Agarwal-uncle of
the applicant and one Aman Gupta under
Sections 200 and 202 Cr.P.C. and after
having found prima facie case against the
applicant summoned him by passing the
impugned
order,
hence
the
present
application.

5. Learned counsel for the applicant
submits that the disputed cheque bearing
Cheque No. 250468 of R.D.C., 29
Rajnagar Ghaziabad Branch of HDFC
Bank Ltd. bearing the signature of the
applicant was lost on 29.11.2004 for
which he has given an information at
police
station
Sihanigate,
District
Ghaziabad on 29.11.2004 itself. He also
informed the concerned Bank about the
lost of the said cheque on 2.12.2004
requesting the Bank to make stop
payment with respect to the said cheque.
Thereafter he also got a news item
published with respect to the said cheque in a
2 All] Deepak Goel Vs. State of U.P. & Anr.
671
daily newspaper at district Ghaziabad on
7.12.2004. He further submits that after
receiving a notice under Section 138 N.I. Act
from the advocate of the complainant, the
applicant sent a reply of the same through his
advocate by registered post. He further
submits that there was no debt or liability on
the applicant of the opposite party no.2 and
the lost cheque of the applicant was misused
by opposite party no.2. The cheque in
question was not dishonoured due to
insufficient funds but it was endorsed in the
memo of bank that payment was stopped by
the drawer. He submits that no offence under
Section 138 N.I. Act is made out against the
applicant. In support of his submission, he
has placed reliance on several judgments of
the Apex Court, i.e., in the case of Raj
Kumar Khurana vs. State (NCT of Delhi)
and another reported in (2009)2 SCC
(Cri.) 936, R. Kalyani vs. Janak C. Mehta
& others (2009) 1 SCC (Cri.) 567 and
DCM Financial Services Limited vs. J.N.
Sareen & another (2008) 3 SCC (Cri.) 401.

6. Learned A.G.A. vehemently opposed
the said prayer and has submitted that the
offence in question is said have been
committed in the year 2004. He submits that
the applicant had purchased certain goods
from the complainant in lieu of which he has
issued the cheque in question in favour of
complainant and he has set up a false defence
that the cheque in question was lost due to
which stop payment was made by the bank on
his request. He submits that from a perusal of
the complaint as well as the statement of the
complainant and its witnesses, cognizable
offence under Section 138 N.I. Act is
disclosed against the applicant for which he is
liable to be prosecuted.

7. Considered the submissions
advanced by learned counsel for the
parties and perused the record.

8. From a perusal of the record, it is
apparent that the applicant has a liability
to make payment to complainant for
which he had issued the cheque in
question in favour of complainant and he
has not denied the his signature on the
cheque in question. The defence set up by
the applicant with respect to the lost of
cheque cannot be adjudicated by this
Court at this stage. The applicant has to
lead his defence before the trial court. The
Apex Court in the case of M/s. Modi
Cements Limited vs. Shri Kuchil
Kumar Nandi reported in JT 1998 (2)
SC 198 has held that once a cheque is
issued and on presentation is dishonoured,
penal provision is attracted. Stopping of
payment will not preclude an action under
Section 138 N.I. Act. It was further held
that the court taking cognizance of the
complaint under Section 138 N.I. Act is
required to be satisfied as to whether a
prima facie case is made out under the
said provision. The drawer of the cheque
undoubtedly gets an opportunity under
Section 139 of the Act to rebut the
presumption at the trial. 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 Act by the
drawee or the holder of a cheque in due
course. In this regard paras-16, 18, 19, 20
and 21 of the said judgment are relevant,
hence the same are quoted hereinbelow:-

" 16. We see great force in the above
submission because 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
drawer or to the Bank for stoppage of the
payment it will not preclude an action
672 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
under Section 138 of the Act by the
drawer or the holder of a cheque in due
course. The object of Chapter XVII, which
is intituled as "OF PENALTIES IN CASE
OF
DISHONOR
OF
CERTAIN
CHEQUES FOR INSUFFICIENCY OF
FUNDS IN THE ACCOUNTS" and
contains Sections 138 to 142, is to
promote
the
efficacy
of
banking
operations and to ensure credibility in
transacting business through cheques. It
is for this reason we are of the considered
view that the observations of this Court in
Electronics
Trade
&
Technology
Development
Corporation
Ltd.,
Secunderabad reported in JT 1996 (1) SC
643 in paragraph 6 to the effect "Suppose
after the cheque is issued to the payee or
to the holder in due course and before it
is presented for encashment, notice is
issued to him not to present the same for
encashment and yet the payee or holder in
due course presents the cheque to the
bank for payment and when it is returned
on instructions. Section 138 does not get
attracted", does not fit in with the object
and purpose for which the above chapter
has been brought on the Statute Book.

18. The aforesaid propositions in
both these reported judgments, in our
considered view, with great respect are
contrary to the spirit and object of
Sections 138 and 139 of the Act. If we are
to accept this proposition it will make
Section 138 a dead letter, for, by giving
instructions to the Bank to stop payment
immediately after issuing a cheque
against a debt or liability the drawer can
easily get rid of the penal consequences
notwithstanding the fact that a deemed
offence was committed. Further the
following observations in para 6 in
Electronics
Trade
&
Technology
Development
Corporation
Ltd.,
Secunderabad (supra). "........... Section
138 of the Act intended to prevent
dishonesty on the part of the drawer of
negotiable instrument to draw a cheque
without sufficient funds in his account
maintained by him in a bank and induce
the payee or holder in due course to act
upon it. Section 138 draws presumption
that one commits the offence if he issues
the cheque dishonestly" in our opinion, do
not also lay down the law correctly.

19. Section 138 of the Act is a penal
provision wherein if a person draws a
cheque on an account maintained by him
with the 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,
on the ground either because of the
amount of money standing to the credit of
that account is insufficient to honor 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. The distinction between the
deeming provision and the presumption is
well discernible. To illustrate, if a person,
draws a cheque with no sufficient funds
available to his credit on the date of issue,
but makes the arrangement or deposited
the amount thereafter before the cheque is
out in the bank by the drawer, and the
cheque is honored, in such a situation
drawing of presumption of dishonesty on
the part of the drawer under Section 138
would not be justified. Section 138 of the
Act gets attracted only when the cheque is
dishonored.

20. On careful reading of Section
138 of the Act, we are unable to subscribe
to the view that Section 138 of the Act
2 All] Gyanendra Kumar Rawat Vs. State of U.P. And Anr.
673
draws presumption of dishonesty against
drawer of the cheque if he without sufficient
funds to his credit in his bank account to
honor the cheque issues the same and,
therefore, amounts to an offence under
Section 138 of the Act. For the persons stated
hereinabove, we are unable to share the
views expressed by this Court in the above
two cases and we respectfully differ with the
same regarding interpretation of Section 138
of the Act of the limited extent as indicated
above.

21. It is needless to emphasize that
the Court taking cognizance of the
complaint under Section 138 of the Act is
required to be satisfied as to whether a
prima facie case is made out under the
said provision. The drawer of the cheque
undoubtedly gets an opportunity under
Section 139 of the Act to rebut the
presumption at the trial. It is for this
reason we are of the considered opinion
that the complaints of the appellant could
not have been dismissed by the High
Court at the threshold."

9. The judgment relied upon by the
learned counsel for the applicant in the
case of Raj Kumar Khurana (Supra) is
totally distinguishable from the present
case and cannot be made applicable to the
instant case. Moreover, the other two case
laws which have been cited by the learned
counsel for the applicant are also
completely distinguishable from the facts
of the present case and they do not deal
with the controversy involved in the
present case, hence the same are also not
applicable in the present case.

10. Thus, in view of the law laid
down by the Apex Court in the case of
M/s Modi Cements Limited (Supra), the
arguments raised by the learned counsel
for the applicant is not sustainable in the
eyes of law.

11. The application lacks merit and
is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2013

BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Misc. Writ Appl.No. 16659 Of 2013

Gyanendra Kumar Rawat
 ...Petitioner
Versus
State of U.P. And Anr.
 ...Respondents

Counsel for the Petitioner:
Sri R.D. Singh, Sri Mayank Singh

Counsel for the Respondents:
A.G.A.

Code Of Criminal Procedure-Section 482-
After closing prosecution evidence and
statements under Section 313-argument,
heard
on
14.06.12-thereafter
on
26.07.12
application
on
behalf
of
prosecution to summon such witnessneither
statement
recorded
under
section 161 nor shown in list of witnessheld-prosecution can not be allowed to
fill up the lacuna after examination of all
prosecution witness.

Held: Para-11
Certainly the prosecution cannot be
permitted to fill up the lacunas after it
has examined all its witnesses. No
reason was shown in the application as
to why the said witness was not
examined by the Investigating Officer
under Section 161 Cr.P.C. and why such
application was not moved at the initial
stage.
The
prosecution
cannot
be
permitted to re-open its case and there
was
no justification
to
allow such
application moved at the belated stage.