# Ganga Ram Singh v. State of U.P. and others

- **Citation:** (2005) 2 ILRA 672
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-11
- **Case number:** Criminal Misc. Application No. 8049 of 1997
- **Bench:** Mrs. Poonam Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ganga-ram-singh-v-state-of-u-p-and-others-40518
- **Pages:** 4

## Headnote

Code of Criminal Procedure S. 482readwith Negotiable Instrument ActSection 138-Cheque dishonored due to
paucity of funds-after recording the
statements under section 200 and 202
Cr.P.C.-accused
were
summoned-but
subsequently discharged on the ground
of pre mature-in revision also get the
same fate-held- both the courts below
committed great error-They should have
wait and allowed the complainant the
establish his case-cognigence should
have taken after expiry of the Stipulated
period-impugned
order
quashednecessary direction issued.

Held: Para 4

Looking
to
the
entire
facts
and
circumstances of the case and hearing
the counsel for respective parties, I feel
that in view of the decisions of the Apex
Court, the trial court should have waited
and allowed the complainant to establish
its case or cognizance should have been
taken after expiry of the stipulated
period,
instead
of
dismissing
the
complaint out right as premature. The
court should have taken cognizance only
after necessary period had lapsed in
2 All] Ganga Ram Singh V. State of U.P. and others 673
accordance with law and cognizance
should be taken subsequently. Since the
complaint
has
been
dismissed
summarily, the applicant has no other
alternative but to approach this Court for
redressal of its grievance.
Case law discussed:
J.T. 2000 (10) SC-141
J.T. 1999 (10) SC-381
J.T. 2004 (7) SC-243

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2005
672
the trial afresh in respect of the present
applicant along with other two accused,
who have been summoned under Section
319 Cr.P.C. Learned Sessions Judge is
directed
to
afford
an
appropriate
opportunity to the prosecution to produce
as many witnesses as it thinks proper after
affording an opportunity to the defence
and after completion of the arguments, the
court shall pass final judgment. The order
dated 15.4.1999 passed in Session Trial
No.33 of 1993 is set aside to the extent of
acquittal of the three accused by means of
the common order. I am conscious of the
fact that the three accused namely
Lavlesh, Dafola and Mohan have not been
arrayed as a party as such I direct the
learned Sessions Judge to issue notice to
the three accused to face the trial but they
may not be taken into custody as they
were already on bail at the time when the
relevant order was passed on 15.4.1999.
Since the sureties were discharged, they
will only be required to furnish fresh
bonds.

5.

Learned
Sessions
Judge,
Chitrakoot is further directed to complete
the trial expeditiously preferably within a
period of six months from the date a
certified copy of this order is received.
Registry is directed to send a certified
copy of this order to the District Judge
Chitrakoot for compliance of this order so
that Session Trial No.33 of 1993 be
completed within the stipulated period.

6. With the aforesaid observations,
this application is finally disposed of and
the case is remanded for afresh trial in
accordance with the directions given
hereinabove.
Application finally disposed of.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2005

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Criminal Misc. Application No. 8049 of
1997

Ganga Ram Singh

...Applicant
Versus
State of U.P. and others ...Respondents

Counsel for the Applicant:
Sri Dev Raj

Counsel for the Respondents:
Sri Muktar Alam
A.G.A.

Code of Criminal Procedure S. 482readwith Negotiable Instrument ActSection 138-Cheque dishonored due to
paucity of funds-after recording the
statements under section 200 and 202
Cr.P.C.-accused
were
summoned-but
subsequently discharged on the ground
of pre mature-in revision also get the
same fate-held- both the courts below
committed great error-They should have
wait and allowed the complainant the
establish his case-cognigence should
have taken after expiry of the Stipulated
period-impugned
order
quashednecessary direction issued.

Held: Para 4

Looking
to
the
entire
facts
and
circumstances of the case and hearing
the counsel for respective parties, I feel
that in view of the decisions of the Apex
Court, the trial court should have waited
and allowed the complainant to establish
its case or cognizance should have been
taken after expiry of the stipulated
period,
instead
of
dismissing
the
complaint out right as premature. The
court should have taken cognizance only
after necessary period had lapsed in
2 All] Ganga Ram Singh V. State of U.P. and others 673
accordance with law and cognizance
should be taken subsequently. Since the
complaint
has
been
dismissed
summarily, the applicant has no other
alternative but to approach this Court for
redressal of its grievance.
Case law discussed:
J.T. 2000 (10) SC-141
J.T. 1999 (10) SC-381
J.T. 2004 (7) SC-243

(Delivered by Hon'ble Mrs. Poonam Srivastava, J.)

1. Heard Sri Devraj Advocate for the
applicant
and
Sri
Mukhtar
Alam
Advocate for the opposite party nos. 3 and
4 and learned A.G.A. for the State.

2. This application has been filed
challenging the order dated 27.3.1995
passed by the Judicial Magistrate Nagina,
District Bijnor confirmed in Revision No.
156 of 1995 vide order dated 16.8.1997
by the Additional session Judge, Bijnor.
The facts giving rise to the dispute is that
the applicant's firm M/s Singh Brothers,
Dhampur, District Bijnor is a registered
firm and deals in the business of
Khandsari Sugar. The applicant Ganga
Ram (complainant) is managing partner
of the firm. The contesting opposite
parties are engaged in manufacturing the
crystal less (Boora) and used to purchase
sugar from the complainant on credit. It is
stated that after the accounts were settled,
outstanding amount of Rs.53,000/ was
due against the opposite parties. An
account payee cheque dated 25.9.1991
was issued for a sum of Rs.54,000/ drawn
in Canara Bank Dhampur Branch, District
Bijnor in the name of Singh Brothers. The
cheque was dishonoured for paucity of
funds. This information was received by
the applicant on 24.3.1992. A written
notice was sent to the opposite party nos.
2 to 4 on 6.4.1992. A copy of the notice
has been annexed as Annexure-1 to the
affidavit. It is alleged in the notice that the
opposite party no. 2 refused to accept the
notice while the notice issued to opposite
party nos. 3 and 4 was returned, therefore,
a second notice dated 4.5.1992 was served
on opposite party no. 4 on 6.5.1992, while
the notice to opposite party no. 3 was
returned with an endorsement that the
name has not been written correctly.
Finally a complaint under Section 138 of
the Negotiable Instruments Act was filed
in the court of Judicial Magistrate, Bijnor
on 20.5.1992. A copy of the same is
annexed as Annexure-2 to the affidavit.
The statements under 200 and 202 Cr.P.C.
was recorded and opposite party nos. 2 to
4 were summoned, whose evidence was
also recorded. The complainant has filed
original cheque dated 15.9.1991 along
with an endorsement of the Bank on the
cheque and reason for its dishonour. The
accused were discharged by the learned
Magistrate vide order dated 27.3.1995.
This order was challenged in revision
which was dismissed and both the orders
have been challenged in this application
on a number of grounds.

3. Counsel for the applicant has
argued
that
the
learned
Magistrate
discharged the opposite party nos. 2 to 4
on the ground that the criminal complaint
was premature. Reliance has been placed
on a decision of the Apex Court in the
case of Narsingh Das Tapadia Vs.
Goverdhan Das Partani and another,
J.T. 2000 (10) S.C. 141. Learned counsel
has argued on the basis of the aforesaid
decision that no period is prescribed
before which the complaint can not be
filed and if filed, not disclosing the cause
of action in terms of Clause (c) of the
proviso
to
Section
138
Negotiable
Instruments Act, the Court may not take
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
674
cognizance till the time the cause of
action
arises
to
the
complainant.
Emphasis has been laid on the principle
enunciated in the aforesaid decision;
"Taking cognizance of an offence" by the
court has to be distinguished from the
filing
of
the
complaint
by
the
complainant. If the complaint is found to
be prematured, it can await maturity, be
returned to the complainant for filing
later. Mere presentation of a complaint
under Section 138 Negotiable Instruments
Act at an earlier date would not
necessarily render the complaint liable to
be dismissed. The other case relied upon
by the counsel for the applicant is M/s
Samrat Shipping Co. Pvt. Ltd. Vs.
Dolly George, J.T. 1999 (10) S.C., 381.
Learned counsel has submitted that the
dismissal of the complaint at the threshold
is too hasty an action and the Apex Court
has set aside the orders of the trial court
as well as High Court holding that prima
facie the court should have accepted the
complaint. Only after evidence was
recorded
and
the
complainant
was
afforded an opportunity to prove the
allegations of the complaint, the court
could dismiss the complaint. In the
present case the argument on behalf of the
complainant is that the courts below
rejected the complaint summarily as it
was presented before the expiry of the
stipulated period and thereafter he has no
other alternative but to approach this court
by
invoking
inherent
jurisdiction
guaranteed under Section 482 Cr.P.C.
Reliance has been placed on a recent
decision of the Apex Court in the case of
Adalat Prasad Vs. Roop Lal Jindal and
others, J.T. 2004 (7),S.C., 243 where the
Apex Court has completely barred the
courts from reviewing an earlier order and
in the circumstances, the applicant is not
in position to institute the second
complaint as the first one has been
rejected on the ground that it is premature.
A second complaint would amount to
reviewing its earlier order and as such it
has been prayed that the impugned orders
be set aside and the learned trial court be
directed to decide the case on merits
instead of dismissing the complaint being
premature.

4. Looking to the entire facts and
circumstances of the case and hearing the
counsel for respective parties, I feel that
in view of the decisions of the Apex
Court, the trial court should have waited
and allowed the complainant to establish
its case or cognizance should have been
taken after expiry of the stipulated period,
instead of dismissing the complaint out
right as premature. The court should have
taken cognizance only after necessary
period had lapsed in accordance with law
and
cognizance
should
be
taken
subsequently. Since the complaint has
been dismissed summarily, the applicant
has no other alternative but to approach
this Court for redressal of its grievance.

5. For the reasons discussed above,
the application is allowed and the
impugned orders dated 27.3.1995 and
16.8.1997 are set aside. The trial court is
directed to proceed afresh and decide the
question afresh on merits.
Application Allowed.
---------
2 All] Arun Kumar Singh V. State of U.P. and others 675
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2005

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 3447 of 2002

Arun Kumar Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.K. Singh

Counsel for the Respondents:
Sri M.A. Qadeer
Sri B.N. Singh
C.S.C

Constitution of India, Article 226-Service
Law-Right
to
appointment-petitioner
being placed at serial no. 2 in the waiting
list for the post of U.P. State Universities
(Centralized) Services Asstt. Registrar
Examination 1996-On the ground that
two candidates of general Category had
resigned within the period of one year
from the date of joining and the top most
candidate of waiting list refused to joinstate government send requisition vide
its
letter
dt.
26.7.01-The
Secretary
Higher Education Commission by its
letter dt. 20.08.01 refused on the pertext
in view of Para 3 of G.O. dt. 23.12.97-the
vacancy arising out due to resignation of
selected candidate after the joining-can
not be filled from the waiting list-heldafter joining of selected candidates such
vacancies stood exhausted-being fresh
vacancies to be carried forward for the
next
selection-No
right
to
claim
appointment subsists.

Held: Para 19,20 and 26

But if all the selected candidates who
had been offered appointment against
the vacancies included in the process of
process of selection join the post to fill
up
such
vacancies
though
shortly
thereafter any or some of the candidates
resign from the post even if during life
time or subsistence of select/waiting
list, such vacancies stood exhausted on
account of such joining of selected
candidates and cannot be filled up either
from the remaining candidates of select
list who ranked lower in order of merit or
from the waiting list despite their being
included in select/waiting list and life of
select/waiting list still subsists. Such
vacancies in our considered opinion
would be fresh vacancies and to be
carried forward for the next selection. It
is also because of the another valid
reason that the vacancies arising out of
resignation of selected candidate in a
particular selection after joining the post
can neither be said to be existing
vacancy for the purpose of the aforesaid
selection nor it can be said to be
anticipated
vacancy
likely
to
occur
within stipulated period of time as
provided under the Rules of Recruitment
as nobody can anticipate resignation of
an incumbent like other contingencies of
similar nature such as death, compulsory
retirement,
voluntary
retirement,
dismissal
and
removal
etc.
of
any
incumbent. Therefore, we are of the
considered opinion that the vacancies
arising on this ground i.e. on resignation
of selected candidate after his joining
cannot be filled up from the candidates
included in the select list or waiting list
even though it has occurred during life
time of such select/waiting list or
select/waiting list is still operating.

At this juncture we would also like to
make it clear that only those vacancies
could be included in the process of
selection which were either existing at
the time of initiation of process of
selection or could be anticipated to be
occurred
during
selection
year
as
provided
under
particular
rules
of
recruitment. Since no other vacancies
could
be
anticipated
except
the
vacancies arising out of superannuation,
therefore, only such vacancies would be