# Dinesh Kumar v. State of U.P. & Anr

- **Citation:** (2024) 8 ILRA 649
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-28
- **Case number:** Application U/s 482 No. 20471 of 2024
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-v-state-of-u-p-anr-54585
- **Pages:** 4

## Headnote

Criminal Law-The Negotiable Instruments
Act, 1881-Sections 138 & 142(1)(b)- to
constitute the offence under Section 138
of N.I. Act, the cheque must be presented
for encashment within its validity period
and after the receipt of intimation with
regard to dishonor of the cheque, the
holder of the cheque is required to issue
demand notice within a period of 30 days
from the date of intimation of dishonor of
the cheque and after the legal demand
notice is issued and served on the drawer
of the cheque, the holder of the cheque is
required to wait for a period of 15 days.
When after expiry of 15 days, the demand
notice is not complied with by the drawer
of the cheque only then the cause of
action of filing the complaint under
Section
138
N.I.
Act
would
arise.
Thereafter, the complainant has a further
period of one month in terms of Section
142(1)(b) for filing the complaint. (Para
7) (E-15)

List of Cases cited:
650 INDIAN LAW REPORTS ALLAHABAD SERIES
Mamta Gautam Vs St.of U.P. passed in Criminal
Revision No. 530 of 1998 dated 2.5.2000

## Text

8 All. Dinesh Kumar Vs. State of U.P. & Anr.
649
transactions may also have a
criminal texture. But the High
Court must see whether a dispute
which is essentially of a civil nature
is given a cloak of criminal offence.
In such a situation, if a civil remedy
is available and is, in fact, adopted
as has happened in this case, the
High Court should not hesitate to
quash the criminal proceedings to
prevent abuse of process of the
court." (emphasis supplied)

26. Relying upon the decision in
Paramjeet Batra (supra), Apex Court in
Randheer Singh v. State of U.P. (2021) 14
SCC
626,
observed
that
criminal
proceedings cannot be taken recourse to as
a
weapon
of
harassment.
In
Usha
Chakraborty & Anr. v. State of West Bengal
& Anr. 2023 SCC OnLine SC 90, relying
upon Paramjeet Batra (supra) it was again
held that where a dispute which is
essentially of a civil nature, is given a cloak
of a criminal offence, then such disputes
can be quashed, by exercising 8 the
inherent powers under Section 482 of the
Code of Criminal Procedure."

27. Considering the submissions of
learned counsel for the applicants and
learned A.G.A. on behalf of State and
keeping in the light facts and circumstances
of the present case and above stated
judgments of Hon'ble Apex Court; on the
basis of foregoing discussion, I am of the
considered opinion that filing of instant
complaint case and issuance of summoning
order
thereon
by
learned
Magistrate
amounts to abuse of process of law, as this
is tantamount to reopening of a case based
on same allegations which has already been
concluded on the basis of police report by
orders of the Court, around seven years
before. The petition under Section 482
Cr.P.C. stands allowed and impugned
summoning order dated 20.04.2009 as well
as the entire proceedings in said complaint
case are hereby quashed.
----------
(2024) 8 ILRA 649
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.08.2024

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/s 482 No. 20471 of 2024

Dinesh Kumar ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Man Mohan Singh

Counsel for the Respondent:
G.A.

Criminal Law-The Negotiable Instruments
Act, 1881-Sections 138 & 142(1)(b)- to
constitute the offence under Section 138
of N.I. Act, the cheque must be presented
for encashment within its validity period
and after the receipt of intimation with
regard to dishonor of the cheque, the
holder of the cheque is required to issue
demand notice within a period of 30 days
from the date of intimation of dishonor of
the cheque and after the legal demand
notice is issued and served on the drawer
of the cheque, the holder of the cheque is
required to wait for a period of 15 days.
When after expiry of 15 days, the demand
notice is not complied with by the drawer
of the cheque only then the cause of
action of filing the complaint under
Section
138
N.I.
Act
would
arise.
Thereafter, the complainant has a further
period of one month in terms of Section
142(1)(b) for filing the complaint. (Para
7) (E-15)

List of Cases cited:
650 INDIAN LAW REPORTS ALLAHABAD SERIES
Mamta Gautam Vs St.of U.P. passed in Criminal
Revision No. 530 of 1998 dated 2.5.2000

(Delivered by Hon'ble Anish Kumar Gupta, J.)

1. Heard Sri Man Mohan Singh,
learned counsel for the applicant and Sri
Rajeev Kumar Singh, learned A.G.A. for
the State.

2. The instant application under
Section 482 Cr.P.C. has been filed seeking
quashing of the entire criminal proceedings
of Complaint Case No. 1397 of 2021
(Rajveer Singh vs. Dinesh Kumar) under
Section 138 of Negotiable Instruments Act,
1881, Police Station-Jaithra, District-Etah
as well as order dated 16.08.2022.

3. Learned counsel for the
applicant relying upon the judgement of the
Coordinate Bench of this Court in the case
of Mamta Gautam vs. State of U.P. passed
in Criminal Revision No. 530 of 1998
dated 2.5.2000 has vehemently submitted
that the instant complaint case filed by the
opposite party no. 2 is time barred as the
legal demand notice was sent on 18.2.2021
which was served on 19.2.2021 on the
applicant, therefore the complaint ought to
have been filed within one month from the
date of service of notice. However, in the
instant case the complaint was filed on
2.4.2021 which is beyond the period of one
month from the date of service of notice,
therefore, learned counsel for the applicant
seeks quashing of the entire proceedings of
the instant case.

4. Per contra, learned A.G.A.
submits that in terms of Section 142 (1)(b)
of N.I. Act, the complainant has one
month's time to file the complaint under
Section 138 of N.I. Act from the date when
the cause of action arises for filing such
complaint and the cause of action for filing
the complaint would arise only after the
expiry of 15 days period from the date of
service of demand notice on the drawer of
the cheque. In the instant case, demand
notice was served on 19.02.2021, therefore,
the cause of action for filing the complaint
would arise after the expiry of 15 days
period from 19.02.2021 i.e. 7.03.2021 and
from 07.03.2021 the complainant had the
time of one month to file the complaint and
in the instant case the complaint has
already been filed within the period of
limitation i.e. on 02.04.2021. In view
thereof, learned A.G.A. submits that no
interference is called for in the instant
matter.

5.

Having
heard
the
rival
submissions made by learned counsel for
the parties, this Court has carefully gone
through the record of the case.

6. From the record of the case, it is
apparent that the cheque was allegedly
issued
by
the
applicant
herein
on
18.10.2020 and 20.10.2020. The aforesaid
cheques were presented for encashment on
21.01.2021 which were dishonored on
22.01.2021 with the remark 'payment
stopped by the drawer'. Thereafter, on
18.2.2021 legal demand notice was issued
by the opposite party no.2 which was
served on 19.2.2021 upon the applicant
herein, thereupon the complaint was filed
on
02.04.2021.
To
appreciate
the
submissions made by learned counsel for
the applicant, it is relevant to take note of
the provisions of Section 138 and 142(1)(b)
of the Negotiable Instruments Ac, 1881,
which are reproduced herein as under:-

"138.
Dishonour
of
cheque for insufficiency, etc., of
funds in the account.?Where any
8 All. Dinesh Kumar Vs. State of U.P. & Anr.
651
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 provision 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, 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 of
other liability" means a legally
enforceable debt or other liability.
142.
Cognizance
of
offences.?(1)
Notwithstanding
anything contained in the Code of
Criminal Procedure, 1973 (2 of
1974),?
(a) no court shall take
cognizance
of
any
offence
punishable
under
section
138
except
upon
a
complaint,
in
writing, made by the payee or, as
the case may be, the holder in due
course of the cheque;
(b) such complaint is made
within one month of the date on
which the cause of action arises
under clause (c) of the proviso to
section 138:
Provided
that
the
cognizance of a complaint may be
taken by the Court after the
prescribed
period,
if
the
complainant satisfies the Court that
he had sufficient cause for not
making a complaint within such
period;
(c) no court inferior to that
of a Metropolitan Magistrate or a
Judicial Magistrate of the first
class
shall
try
any
offence
punishable under section 138.
(2)
The
offence
under
section 138 shall be inquired into
and tried only by a court within
whose local jurisdiction,?
(a)
if
the
cheque
is
delivered for collection through an
account, the branch of the bank
652 INDIAN LAW REPORTS ALLAHABAD SERIES
where the payee or holder in due
course, as the case may be,
maintains the account, is situated;
or
(b)
if
the
cheque
is
presented for payment by the payee
or holder in due course, otherwise
through an account, the branch of
the drawee bank where the drawer
maintains the account, is situated.
Explanation.?For
the
purposes of clause (a), where a
cheque is delivered for collection at
any branch of the bank of the payee
or holder in due course, then, the
cheque shall be deemed to have
been delivered to the branch of the
bank in which the payee or holder
in due course, as the case may be,
maintains the account."

7. From the plain reading of the
aforesaid provisions, it is apparent that to
constitute the offence under Section 138 of
N.I. Act, the cheque must be presented for
encashment within its validity period and
after the receipt of intimation with regard to
dishonor of the cheque, the holder of the
cheque is required to issue demand notice
within a period of 30 days from the date of
intimation of dishonor of the cheque and
after the legal demand notice is issued and
served on the drawer of the cheque, the
holder of the cheque is required to wait for
a period of 15 days. When after expiry of
15 days, the demand notice is not complied
with by the drawer of the cheque only then
the cause of action of filing the complaint
under Section 138 N.I. Act would arise.
Thereafter, the complainant has a further
period of one month in terms of Section
142(1)(b) for filing the complaint.

8. In view of the aforesaid
observations, the observation made by
Coordinate Bench of this Court in Mamta
Gautam (supra) that "under Clause (b) of
Section 142, Negotiable Instruments Act,
the complaint can be filed within a period
of one month, from the date of service of
the notice" is in the considered opinion of
this Court, per incuriam as language of
Section 142(1)(b) is categorically clear
which says that one month period for filing
the complaint will start when the cause of
action arises under clause (c) of the proviso
to Section 138 of N.I. Act.

9. In view thereof, the instant
application lacks merit and is accordingly,
dismissed.
----------
(2024) 8 ILRA 652
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.08.2024
BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/s 482 No. 21148 of 2024

Rohan Singh ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sheshadri Trivedi, Shiv Babu Dubey

Counsel for the Respondents:
G.A.

(Criminal Law- The Code of Criminal
Procedure-1973-Section-437(6)-
Section
437 Cr.P.C. itself goes to show that any
person
accused
of
any
non-bailable
offence triable by Magistrate, is entitled to
be released on bail, if in case the trial is
not concluded within a period of 60 days
from the first date fixed for taking
evidence in the case, the satisfaction of
the Magistrate has to be recorded while
passing the order releasing such an