# Dharmendra Nishad v. State of U.P. & Anr

- **Citation:** (2021) 8 ILRA 615
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-02
- **Case number:** Application U/S 482. No. 5421 of 2021
- **Bench:** Vivek Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-nishad-v-state-of-u-p-anr-47281
- **Pages:** 3

## Headnote

A. Criminal Law-Code of Criminal
Procedure,
1973-Section
482
-
Negotiable
Instrument
Act,
1981Section
138-quashing
of
entire
criminal proceeding-accused seeking
quashing of entire proceeding on the
sole ground that the complainant had
not appeared before the court and
had not given his evidence u/s 200202
Cr.P.C.-The
magistrate
was
required to observe the provisions
contained in sections 200-202 Cr.P.C.
does
not
appear
to
have
any
substance especially when section
145(1)
of
N.I.
Act
contemplates
taking of the complainant evidence
on affidavit not only in the trial but
also
in
any
inquiry
or
other
proceeding-Section 145 of the Act
has excluded the provisions of Code
of Criminal procedure with regard to
the manner in which evidence of the
complainant is to be taken- plea
taken by the applicant, is not made
out.(Para 1 to 8)

The petition is dismissed. (E-5)

List of Cases cited:

## Text

8 All. Dharmendra Nishad Vs. State of U.P. & Anr.
615
Counsel for the Applicant:
Mukul Rakesh

Counsel for the Opposite Parties:
G.A., L.P. Shukla

(Delivered by Hon'ble Mohd. Faiz Alam
Khan, J.)

1. None is present for applicant when
the case is taken up for hearing, however Sri
Rajesh
Kumar,
learned
Additional
Government Advocate for State is present.

2. This case has been listed today for
the reason that on perusal of judgment, after
the same has been uploaded, it is noticed that
in para-4 of page-1, one sentence has been
crept which is not relevant for the disposal of
dispute between the parties and the same
appears
to
have
crept
up
due
to
malfunctioning of the computer and thus is
not having any bearing either on the facts or
on the merits of the case and the same is
required to be rectified.

3. Thus the phrase "Priti Saraf & Anr.
Vs.State of NCT of Delhi & Anr. in
Criminal Appeal No(s).296 of 2021 dated
10th March, 2021" appearing at page-1,
para-4 of the judgment dated 09.08.2021,
passed in Application U/S 482/378/407 No. -
1144 of 2010 is struck of and the above
judgment dated 9.8.2021 is corrected to that
extent.

4. This order shall remain part and
parcel of the judgment dated 09.08.2021,
passed in Application U/S 482/378/407 No. -
1144 of 2010
----------
(2021)08ILR A615
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2021
BEFORE
THE HON'BLE VIVEK AGARWAL, J.

Application U/S 482. No. 5421 of 2021

Dharmendra Nishad ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Aqeel Ahmad, Sri Sanjeev Kumar Shukla

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law-Code of Criminal
Procedure,
1973-Section
482
-
Negotiable
Instrument
Act,
1981Section
138-quashing
of
entire
criminal proceeding-accused seeking
quashing of entire proceeding on the
sole ground that the complainant had
not appeared before the court and
had not given his evidence u/s 200202
Cr.P.C.-The
magistrate
was
required to observe the provisions
contained in sections 200-202 Cr.P.C.
does
not
appear
to
have
any
substance especially when section
145(1)
of
N.I.
Act
contemplates
taking of the complainant evidence
on affidavit not only in the trial but
also
in
any
inquiry
or
other
proceeding-Section 145 of the Act
has excluded the provisions of Code
of Criminal procedure with regard to
the manner in which evidence of the
complainant is to be taken- plea
taken by the applicant, is not made
out.(Para 1 to 8)

The petition is dismissed. (E-5)

List of Cases cited:

1. Mandvi Co-operative Bank Ltd Vs Nimesh B.
Thakore(2010) 3 SCC 83,

2. Sachin Agarwal Vs St. of U.P. (2011) 75 ACC
482

(Delivered by Hon'ble Vivek Agarwal, J.)
616 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Sanjeev Kumar Shukla,
learned counsel for the applicant and Sri
Janardan Prakash, learned AGA for the
State.

2. This application under Section 482
Cr.P.C. has been filed on behalf of the
accused seeking quashing of the entire
proceedings of Complaint Case No. 417 of
2019 (Nasreen vs. Dharmendra) under
Section 138 of the Negotiable Instruments
Act, 1881, Police Station-Kotwali, DistrictJaunpur as well as summoning order dated
07.08.2019, pending in the Court of Judicial
Magistrate-Ist, Jaunpur and non-bailable
warrants issued on 08.01.2021, on a singular
ground that the impugned order dated
07.08.2019
does
not
disclose
that
complainant had appeared before the court
concerned and had given his evidence under
Sections 200-202 Cr.P.C

3. Sri Janardan Prakash opposes the
prayer made by learned counsel for applicant.

4. After hearing learned counsel for the
parties and going through the record, it will
be just and proper to refer to the provisions
contained in Section 145 of the Negotiable
Instruments Act, 1881, which reads as
under:-

"Evidence on affidavit.?

(1)
Notwithstanding
anything
contained
in
the
Code
of
Criminal
Procedure, 1973 (2 of 1974), the evidence of
the complainant may be given by him on
affidavit and may, subject to all just
exceptions be read in evidence in any
enquiry, trial or other proceeding under the
said Code.

(2) The Court may, if it thinks fit,
and shall, on the application of the
prosecution or the accused, summon and
examine any person giving evidence on
affidavit as to the facts contained therein."

5. In case of Radhey Shyam Garg vs.
Naresh Kumar Gupta; (2009) 13 SCC 201,
it is held that "if affidavit in terms of the
provisions of Section 145of the Act is to be
considered to be an evidence, it is difficult
to comprehend as to why the court will ask
the deponent of the said affidavit to
examine himself with regard to the contents
thereof once over again. He may be crossexamined and upon completion of his
evidence, he may be re-examined."

6. Similarly, in case of Mandvi Cooperative Bank Ltd. vs. Nimesh B.
Thakore; (2010) 3 SCC 83, the Supreme
Court has held that "once it is realized that
Sections 143 to 147 were designed
especially to lay down a much simplified
procedure for the trial of dishonoured
cheque cases with the sole object that the
trial of those cases should follow a course
even swifter than a summary trial and once
it is seen that even the special procedure
failed to effectively and expeditiously
handle the vast multitude of cases coming
to the court, the claim of the accused that
on being summoned under Section 145(2),
the complainant or any of his witnesses
whose evidence is given on affidavit must
be made to depose in examination-in- chief
all over again plainly appears to be a
demand
for
meaningless
duplication,
apparently aimed at delaying the trial.

Section 145 of the Act has
excluded the provisions of Code of
Criminal Procedure with regard to the
manner
in
which
evidence
of
the
complainant is to be taken. Section 145(1)
of the Act provides that notwithstanding
any contained in the Code of Criminal
8 All. Kamlendra Bahadur & Ors. Vs. State of U.P. & Anr.
617
Procedure, 1973, the evidence of the
complainant may be given by him on
affidavit and may, subject to all just
exceptions be read in evidence in any
inquiry, trial or other proceedings under
the said Act. However, the court has power
in certain circumstances to examine the
person giving evidence on affidavit either
on the application of the prosecution or the
accused and this provision is contained in
sub-section (2) of section 145 of the Act,
the Magistrate was not legally required to
examine the complainant and his witnesses
as provided in Section 200 of the Criminal
of PC. The expression "inquiry" and "other
proceeding" used in section 145(1) of the
Act very well includes the proceedings of
the complaint held at the pre-summoning
stage, therefore, the affidavit could be filed
and relied upon by the Magistrate in
passing the summoning order."

7. In case of Sachin Agarwal vs. State
of U.P.; (2011) 75 ACC 482, it has been
held that "the Magistrate was required to
observe
the
provisions
contained
in
sections 200 and 202 Cr.P.C. does not
appear to have any substance especially
when section 145(1) of the Negotiable
Instruments Act contemplates taking of the
complainant evidence on affidavit not only
in the trial but also in any inquiry or other
proceeding. The term inquiry and also the
term other proceedings very well includes
the proceedings held by the Magistrate
before summoning the accused."

8. In view of aforesaid legal position,
it is evident that the plea taken by the
applicant's counsel that since Magistrate
has not observed that provisions contained
in Sections 200 and 202 Cr.P.C., have not
been followed, then applicant is entitled to
quashing, is not made out, therefore,
petition fails and is dismissed.
----------
(2021)08ILR A617
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.07.2021

BEFORE

THE HON'BLE DR. YOGEDRA KUMAR
SRIVASTAVA, J.

Application U/S 482. No. 6701 of 2021

Kamlendra Bahadur & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ronak Chaturvedi

Counsel for the Opposite Parties:
A.G.A.

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 482 - Indian
Penal
Code,
1860-Sections
498-A,
323,342, 504, 506, & SC/ST Act, 1989section 3(2) (v-a)-quashing of-plea taken
by the applicants that they be denied
opportunity
to
move
a
discharge
application-applicants
duly
appeared
before the court and order was passed for
framing of charges-trial judge recorded a
prima facie satisfaction with regard to the
material being sufficient for the purpose
of framing of charge after perusing the
case diary, FIR and evidence collectedorder read and explained to the accused
by fixing date for evidence and issued
summons to the witnesses-order-sheet of
the case indicates several dates have been
fixed and applications seeking exemptions
for appearance several times also-plea
taken by the applicants that their valuable
right to plead discharge has been taken
away, seems as an afterthought.(Para 1 to
34)

B. The ambit and scope of exercise of
power under Secitons 227 and 228 of the
code, are fairly well settled. the test to be