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

- **Citation:** (2005) 4 ILRA 1151
- **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-40569
- **Pages:** 4

## Headnote

Code of Criminal Procedure-S. 482readwith Negotiable Instrument ActSection 138-cheque dishonored due to
paucity
of
funds-after
recording
statements-under Section 200 and 202
Cr.P.C.-accused
were
summoned-but
subsequent discharge on grand of premature-revision also get the same fateheld-both the courts below committed
great error-They should have waited and
allowed the complainant to establish his
case-cognigence should have taken after
expiry of the stipulated period-impugned
order quashed-consequential directions
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
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

4 All] Ganga Ram Singh V. State of U.P. and others
1151
"We are, therefore, of the opinion
that the words 'reasonably practicable'
would apply in the case where the
authority cannot, in a reasonable manner,
put into practice the clauses in relation to
an enquiry, namely, because of certain
facts and circumstances peculiar to each
case, the authority cannot, in a reasonable
manner, hold an enquiry. There may be a
case where the charged person may have
absconded, or a case where in spite of the
best efforts, the disciplinary authority may
not have been above to serve the notice of
the enquiry on the person charged or it
may be a case where it is not possible for
the person against whom the charge had
been made to come and join, at the
enquiry or there may be similar other
valid reasons depending on the facts and
circumstances of each case."

7. Similar view has been held by this
Court in Tej Bahadur Singh vs. The
Senior
Superintendent
of
Police,
Moradabad and others, 1999(3) ALR
812 and in Achal singh vs. State of U.P.
and others, (2002) 47 ALJ 510.

8. In Dharam Pal Singh vs. State
of U.P. and others, 2005 ALJ 819, the
impugned order of termination passed
under Rule 8(2)(b) of the Rules of 1991
was set aside by this Court as it did not
contain the reasons for dispensing with
the inquiry.

9. In the present case, I find that the
petitioner absented himself on several
occasions for which he was penalised.
The disciplinary authority found that in 20
years he was absent for 576 days and that
he was also involved in a criminal case,
and on this basis, the disciplinary
authority had passed the order removing
the petitioner from the service. The
impugned
order
indicates
that
the
authority had not given any reason for
dispensing
with
the
inquiry.
Consequently, the impugned order is the
violation of the provisions of Rule 8(2)(b)
of the Rules of 1991. Further, the charges
so levelled against the petitioner are such
which can be easily enquired through a
departmental inquiry and it is not a case
where an oral inquiry cannot be held.
Consequently, in my opinion, the decision
of the disciplinary authority in taking
recourse to the provisions of Section
2(8)(b) of the 1991 Rules was wholly
arbitrary.

10. In the result, the writ petition
succeeds and is allowed. The impugned
orders dated 9.7.2001 and 9.11.2001,
passed by the respondents are quashed. It
is open to the disciplinary authority to
initiate a departmental inquiry against the
petitioner, if they are so advised and
provide an opportunity of hearing to the
petitioner as contemplated under The
Uttar Pradesh Police Officers of the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991.
---------
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. & others ...Opposite Parties

Counsel for the Applicant:
Sri Dev Raj
1152 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Counsel for the Respondents:
Sri Muktar Alam

Code of Criminal Procedure-S. 482readwith Negotiable Instrument ActSection 138-cheque dishonored due to
paucity
of
funds-after
recording
statements-under Section 200 and 202
Cr.P.C.-accused
were
summoned-but
subsequent discharge on grand of premature-revision also get the same fateheld-both the courts below committed
great error-They should have waited and
allowed the complainant to establish his
case-cognigence should have taken after
expiry of the stipulated period-impugned
order quashed-consequential directions
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
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 All] Ganga Ram Singh V. State of U.P. and others
1153
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
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
1154 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
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.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.07.2005

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

Criminal Misc. Application No.8063 of
1997

Smt. Geeta Tiwari

...Applicant
Versus
Kashinath and another...Opposite Parties

Counsel for the Applicant:
Sri V.C. Tiwary
Sri Ashwini Kumar Awasthi
Sri Manish Tiwary

Counsel for the Opposite Parties:
Sri D.S. Tiwari
Sri Bajrangee Mishra
A.G.A.

Code of Criminal Procedure-Section 482applicant filed complaint-alleging the
offence committed by the Opposite Party
No. 2 -who in its official capacity replied
the query made by the applicant about
non payment of the salary of her
husband-and also for not making visit to
her company for last four months-Court
below held the letter written under
official capacity in bonafide manner
hence no offence made out, according
the complaint rejected at the same time
passed
an
order
of
acquittal-held
impugned orders suffers no illegality or
any miscarriage of justice-call for no
interference.

Held: Para 6

After going though the entire record and
the perusal of the ingredients of Section
499 I.P.C. the facts of the case would not
constitute the offence of 'defamation', I
am of a considered opinion that the
alleged letter was firstly written in good
faith and only and opinion was disclosed
to the applicant, that too in compliance
of
the
direction
of
the
District
Magistrate.
Assuming
that
the
imputation
was
made
against
the
applicant husband, it was in good faith
for the protection of the interest of the
wife (applicant) who herself had asked
for information about her husband as his
whereabouts was not known since last
four months. The letter was only by way
of a caution intended for the good of the
person.

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

1. Heard Sri Manish Tiwary, learned
counsel for the applicant Sri D.S. Tiwary
Advocate, assisted by the Sri Bajrangee
Mishra Advocates for the opposite party
no. 1 and learned A.G.A.
Counter and rejoinder affidavits have
been filed which are on record.

2. The applicant has challenged the
order dated 4.10.1997 passed by the
Sessions Judge, Azamgarh in Criminal
Revision No. 152 of 1997 confirming the
order dated 15.4.1997 in case no. 490 of
1995,
whereby
the
Chief
Judicial
Magistrate,
Azamgarh
rejected
the