# Gopal Prasad Sharma v. State of U.P. & Anr

- **Citation:** (2026) 2 ILRA 8
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-11
- **Bench:** Avnish Saxena
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gopal-prasad-sharma-v-state-of-u-p-anr-54852
- **Pages:** 23

## Text

_Characters 0–39,497 of 75,614. This is a partial read: ask again with offset=39497 for what follows._

8 INDIAN LAW REPORTS ALLAHABAD SERIES
(2026) 2 ILRA 8
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.02.2026

BEFORE

THE HON'BLE AVNISH SAXENA, J.

Application U/S 428 No. 15862 of 202
&
Other Connected Cases

Gopal Prasad Sharma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

ISSUE FOR CONSIDERATION
Whether dismissal of complaints under Section 256 CrPC amounts to acquittal when the accused never
appeared.

Whether revision under Sections 397/401 CrPC was maintainable instead of appeal under Section 378(4)
CrPC.

Validity of summoning orders under Section 138 NI Act.

Whether accused's repeated non-appearance amounts to abuse of process.

HEADNOTES
Criminal Law - Code of Criminal Procedure, 1973 - Sections - 200, 201, 203, 204, 204(4), 247,
251, 252, 253, 254, 255, 256, 256(1), 257, 258, 259, 378, 378(4), 378(5), 311, 397, 398, 399,
400, 401, 401(2), 402, 482 - Negotiable Instruments Act, 1881 - Section - 138, 143, 141: -
Application u/s 482 - against revisional orders restoring complaints - seeking relief of quashing - complaint
u/s 138 NI Act for dishonour of cheques - cognizance taken - summons - bailable and non-bailable warrants
issued - accused never appeared - trial not commenced - complaints dismissed by Magistrate under section
256 CrPC - revision allowed by Sessions Court - connected cases filed by accused challenging revisional
orders and summoning orders - applicant pleaded that remedy lay in appeal u/s 378(4) CrPC and cognizance
defective - Court finds that acquittal without trial is illegal, revision maintainable, and cheques issued
personally - held - (i) Section 256 CrPC cannot be invoked to acquit an accused who never appeared for trial
- (ii) Revision is the proper remedy against dismissal of complaints in such circumstances, not appeal - (iii)
Accused's conduct of evading summons/warrants for over a decade held to be abuse of process, - (iv)
summoning orders are proper - consequently, all eight applications are dismissed with costs of Rs. 50,000
payable to complainant, - however, complainant's Application is allowed with direction to expedite the trial in
line with Supreme Court directions on speedy trial under NI Act. (Para - 41, 52, 53, 54, 55, 56, 57, 60, 61, 62)
Leading Application allowed with direction but connected applications are dismissed. (E-11)

CASE LAW CITED
Associated Cement Co. Ltd. v. Keshvanand (1998) 1 SCC 687
S. Anand v. Vasumathi Chandrasekar (2008) 4 SCC 67
S. Rama Krishna v. S. Rama Reddy (2008) 5 SCC 535
BLS Infrastructure Ltd. v. Rajwant Singh (2023) 4 SCC 326
Anil Kumar Agarwal v. State of U.P. (Allahabad HC, Larger Bench)
2 All. Gopal Prasad Sharma Vs. State of U.P. & Anr.
9
Ranjeet Sarkar v. Ravi Ganesh Bhardwaj (2025) 7 SCC 234
Aneeta Hada v. Godfather Travels Pvt. Ltd. (2012) 5 SCC 661
Amit Kapoor v. Ramesh Chandra (2012) 9 SCC 460
In Re: Expeditious Trial of Cases under Section 138 NI Act (2021) 16 SCC 116
LIST OF ACTS
Negotiable Instruments Act, 1881 - Code of Criminal Procedure, 1973.

LIST OF KEYWORDS
Complaint - transaction - Cheque dishonour - cognizance - Summoning Order - summons - bailable warrant -
non-bailable warrant - acquittal, revision vs appeal, summons trial, abuse of process, speedy trial,
non-appearance, costs imposed - opportunity - direction - expedite disposal - rejected - allowed.

CASE ARISING FROM
Complaint Case No. 80 of 2012 [Gopal Prasad Sharma Vs. Ram Anoop Prasad @ Rai Anoop Prasad],
Criminal Revision No. 529 of 2017 [Gopal Prasad Sharma Vs. State of U.P. and Another],
Complaint Case No. 76 of 2012 [Gopal Prasad Sharma Vs. Ram Anoop Prasad @ Rai Anoop Prasad],
Criminal Revision No. 526 of 2017 [Gopal Prasad Sharma Vs. State of U.P. and Another],
Complaint Case No. 79 of 2012 [Gopal Prasad Sharma Vs. Ram Anoop Prasad @ Rai Anoop Prasad],
Criminal Revision No. 528 of 2017 [Gopal Prasad Sharma Vs. State of U.P. and Another],
Complaint Case No. 78 of 2012 [Gopal Prasad Sharma Vs. Ram Anoop Prasad @ Rai Anoop Prasad],
Criminal Revision No. 334 of 2017 [Gopal Prasad Sharma Vs. State of U.P. and Another],
Complaint Case No. 72 of 2012 [Gopal Prasad Sharma Vs. Ram Anoop Prasad @ Rai Anoop Prasad],
Criminal Revision No. 530 of 2017 [Gopal Prasad Sharma Vs. State of U.P. and Another],
Complaint Case No. 77 of 2012 [Gopal Prasad Sharma Vs. Ram Anoop Prasad @ Rai Anoop Prasad],
Criminal Revision No. 527 of 2017 [Gopal Prasad Sharma Vs. State of U.P. and Another],
Complaint Case No. 74 of 2012 [Gopal Prasad Sharma Vs. Ram Anoop Prasad @ Rai Anoop Prasad],
Criminal Revision No. 532 of 2017 [Gopal Prasad Sharma Vs. State of U.P. and Another],
Complaint Case No. 75 of 2012 [Gopal Prasad Sharma Vs. Ram Anoop Prasad @ Rai Anoop Prasad],
Criminal Revision No. 531 of 2017 [Gopal Prasad Sharma Vs. State of U.P. and Another] - all the compliant
were filed before the Court of Additional Chief Judicial Magistrate-IV, Agra.

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri Sushil Shukla, Senior Advocate assisted by Shri Ravitendra Pratap Singh.
Counsel for Respondent(s): Shri Raj Shekhar Srivastava, AGA.

(Delivered by Hon'ble Avnish Saxena, J.)

1. This leading case alongwith the connected cases has been taken by this court on being
nominated by Hon'ble the Chief Justice on 29.11.2025.

2. The leading case in this bunch is an application under Section 482 CrPC filed by the
complainant (Gopal Prasad Sharma) against the accused opposite party no.2 (Ram Anoop Prasad @
Rai Anoop Prasad) for seeking direction of this Court to direct the speedy disposal of complaint
filed twelve years back by the complainant for the offence under Section 138 Negotiable
Instruments Act, 1881, P.S. Shahganj, District Agra. This application is particularly moved to seek
direction in Complaint Case No. 74 of 2012 (Gopal Prasad Sharma Vs. Ram Anoop Prasad @ Rai
Anoop Prasad), though there are seven other complaints between the same parties arose out of
same transaction. Before dealing with the issue, the crux of the matter in all the cases having
genesis from the single incident needs to be mentioned.
10 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Connected with the above application are eight other applications filed by accused/applicant
(Ram Anoop Prasad @ Rai Anoop Prasad), against Gopal Prasad Sharma (complainant) to assail,
primarily, the orders allowing the criminal revisions filed by the complainant against the
accused/applicant for quashing the orders of the trial Magistrate acquitting the accused/applicant
invoking Section 256 CrPC and alternatively, the summoning orders dated 25.02.2012 passed by
the Magistrate, summoning the accused/applicant for offence under Section 138 Negotiable
Instruments Act, 1881.

For the sake of brevity, comprehensiveness and clarity in the judgement the words used
to represent the applicant and opposite party no.2, is taken as "complainant", who has filed
the case and "accused", who is summoned in complaint; whereas, Negotiable Instruments
Act, 1881 will be referred as "NI Act" and The Code of Criminal Procedure, 1973 as "CrPC".

4. Heard, Sri Sushil Shukla, learned Senior Advocate assisted by Sri Ravitendra Pratap Singh,
learned counsel for accused; Sri Rajesh Kumar Pandey, learned counsel for complainant; and Sri
Raj Shekhar Srivastava, learned A.G.A. for the State.

5. The complaint has filed eight complaints in the year 2012 against the accused for offence
under Section 138 NI Act before the Magistrate at Agra with alleged averments that the
complainant and the accused were having close and cordial relations. In the last week of June 2011,
the accused came to complainant's house at Shahganj, Agra and asked for some money and also
insisted the complainant to purchase his flat situated at Ghaziabad for a consideration of Rs.
80,00,000/-. The complainant accepted the offer and in the first week of July, 2011, he gave Rs.
30,00,000/- as advance to the accused, in presence of three persons, whose names have been
disclosed in the complaint. It was agreed between the parties that the remaining amount of Rs.
50,00,000/- would be made good at the time of execution of sale deed. Somehow the deal could not
be materialized and the accused has offered to return the advanced money, which was accepted by
the complainant. The accused thereafter returned Rs. 30,00,000/- through eight cheques. Four
cheques of Rs. 2,50,000/- each and four cheques of Rs. 5,00,000/- each. All these cheques were
dishonored due to insufficiency of funds and led to eight criminal complaints.

6. In all the eight complaints the learned Magistrate has taken cognizance against the accused
for offence under Section 138 NI Act and issued the summons to the accused. For continuous
period of two years, the summons have been issued, but the accused did not appear. The Magistrate
then issued bailable warrant, but even then the accused did not appear. On 29.09.2014, the
complainant could not appear before the trial court due to the reason of death in his family and his
counsel also did not turn up, consequently, the learned Magistrate has dismissed all the eight
complaints and acquitted the accused invoking Section 256 CrPC It is this order of Magistrate,
which was challenged by the complainant in revision before the court of Sessions and the revisional
court has set aside the order of learned Magistrate in all the eight revision petitions. The learned
Magistrate has again resorted to issuance of processes and till 24.01.2024, the summons, bailable
warrants and non-bailable warrants have continuously been issued against accused, but he did not
appear to proceed with the trial; else moved the connected eight applications under Section 482
CrPC for quashing the revisional court's order, alternatively, the cognizance order passed by the
Magistrate. Now, it would be expedient to deal with all the eight applications, separately.
2 All. Gopal Prasad Sharma Vs. State of U.P. & Anr.
11

[1. Crl. Misc. Application U/S 482 CrPC No. 12094 of 2024 (Rai Anoop Prasad Vs. State
of U.P. and Another)] :-

7. The Complaint Case No. 80 of 2012 [Gopal Prasad Sharma Vs. Ram Anoop Prasad @ Rai
Anoop Prasad] was filed for dishonor of Cheque No. 598510 dated 26.09.2011 for Rs. 2,50,000/-
drawn on South Indian Bank Ltd, Chitranjan Park Branch, New Delhi, 110019. This cheque was
deposited by the complainant in his Indian Overseas Bank, Kamla Nagar Agra on 27.09.2011 but
the cheque returned unpaid by the Bank. The complainant has contacted the accused, who has
asked for re-presentation of cheque, on which the cheque was again presented on 30.10.2011 and
23.11.2011 but again returned unpaid with the remarks that Funds Insufficient. The information
of dishonor of cheque was intimated by the Bank vide memo dated 24.11.2011. The legal notice
dated 13.12.2011 has been sent and on 24.01.2012 the complaint was filed. The court of Additional
Chief Judicial Magistrate-IV, Agra has taken into consideration the sufficiency of evidence
regarding dishonour of cheque and took cognizance of the offence under Section 138 NI Act,
consequently, issued summons to the accused by order dated 25.02.2012. From 30.03.2012 till
18.06.2014 summons have continuously been issued against the accused. On 14.08.2014, the
bailable warrant for Rs. 5,000/- was issued against the accused. On 27.09.2014, the parties did not
appear. The case was then fixed for further orders. On 29.09.2014 neither the complainant was
present nor the accused, consequently, the complaint was dismissed and accused was acquitted
under Section 256 CrPC. The orders is reiterated underneath:-

"29.09.2014- Called out. Complainant not present even on the last date of hearing also,
complainant not present. It is 2:40 p.m. so, complaint is dismissed u/s 256 CrPC and accused is
acquitted. File be consign to RR."

8. This order of learned Magistrate has been challenged in Criminal Revision No. 529 of 2017
[Gopal Prasad Sharma Vs. State of U.P. and Another]. The revision was allowed by order dated
04.04.2018 setting aside the order dated 29.09.2014. It is directed in the revision that the learned
Magistrate may dispose of the complaint on merit.

9. The learned Magistrate is again seized with the matter. From 10.04.2018 to 30.01.2019, the
summons were continuously issued; from 15.03.2019 to 05.10.2019, the bailable warrants have
been issued; and from 09.12.2019 to 24.01.2024, the Non-bailable Warrants have been issued
against the accused. It is thereafter that the present Application under Section 482 CrPC is filed.

[2. Crl. Misc. Application U/S 482 CrPC No. 12548 of 2024 (Rai Anoop Prasad Vs. State
of U.P. and Another)] :-

10. The Complaint Case No. 76 of 2012 [Gopal Prasad Sharma Vs. Ram Anoop Prasad @ Rai
Anoop Prasad] was filed for dishonor of Cheque No. 598509 dated 26.09.2011 for Rs. 2,50,000/-
drawn on South Indian Bank Ltd, Chitranjan Park Branch, New Delhi, 110019. This cheque was
deposited by the complainant in his Indian Overseas Bank, Kamla Nagar Agra on 27.09.2011 but
the cheque returned unpaid by the Bank. The complainant has contacted the accused, who has
asked for re-presentation of cheque, on which the cheque was again presented on 30.10.2011 and
23.11.2011 but again returned unpaid with the remarks that Funds Insufficient. The information
12 INDIAN LAW REPORTS ALLAHABAD SERIES
of dishonor of cheque was intimated by the Bank vide memo dated 24.11.2011. The legal notice
dated 13.12.2011 has been sent and on 24.01.2012 the complaint was filed. The court of Additional
Chief Judicial Magistrate-IV, Agra has taken into consideration the sufficiency of evidnce
regarding dishonour of cheque and took cognizance of the offence under Section 138 NI Act,
consequently, issued summons to the accused by order dated 25.02.2012. From 30.03.2012 till
18.06.2014 summons have continuously been issued against the accused. On 14.08.2014, the
bailable warrant for Rs. 5,000/- was issued against the accused. On 27.09.2014, the parties did not
appear. The case was then fixed for further orders. On 29.09.2014 neither the complainant was
present nor the accused, consequently, the complaint was dismissed and accused was acquitted
under Section 256 CrPC. The orders is reiterated underneath:-

"29.09.2014- Called out. Complainant not present even on the last date of hearing also,
complainant was not present. It is 2:50 p.m. so, complaint is dismissed u/s 256 CrPC and
accused is acquitted. File be consign to RR."

11. This order of learned Magistrate has been challenged in Criminal Revision No. 526 of
2017 [Gopal Prasad Sharma Vs. State of U.P. and Another]. The revision was allowed by order
dated 04.04.2018 setting aside the order dated 29.09.2014. It is directed in the revision that the
learned Magistrate may dispose of the complaint on merit.

12. The learned Magistrate is again seized with the matter. From 10.04.2018 to 24.01.2019,
the summons were continuously issued; from 15.03.2019 to 05.10.2019, the bailable warrants have
been issued;and from 09.12.2019 to 24.01.2024, the Non-bailable Warrants have been issued
against the accused. It is thereafter that the present Application under Section 482 CrPC is filed.

[3. Crl. Misc. Application U/S 482 CrPC No. 12590 of 2024 (Rai Anoop Prasad Vs. State
of U.P. and Another)] :-

13. The Complaint Case No. 79 of 2012 [Gopal Prasad Sharma Vs. Ram Anoop Prasad @ Rai
Anoop Prasad] was filed for dishonor of Cheque No. 598511 dated 26.09.2011 for Rs. 2,50,000/-
drawn on South Indian Bank Ltd, Chitranjan Park Branch, New Delhi, 110019. This cheque was
deposited by the complainant in his Indian Overseas Bank, Kamla Nagar Agra on 27.09.2011 but
the cheque returned unpaid by the Bank. The complainant has contacted the accused, who has
asked for re-presentation of cheque, on which the cheque was again presented on 30.10.2011 and
23.11.2011 but again returned unpaid with the remarks that Funds Insufficient. The information
of dishonor of cheque was intimated by the Bank vide memo dated 24.11.2011. The legal notice
dated 13.12.2011 has been sent and on 24.01.2012 the complaint was filed. The court of Additional
Chief Judicial Magistrate-IV, Agra has taken into consideration the sufficiency of evidence
regarding dishonour of cheque and took cognizance of the offence under Section 138 NI Act,
consequntly, issued summons to the accused by order dated 25.02.2012. From 30.03.2012 till
18.06.2014 summons have continuously been issued against the accused. On 14.08.2014, the
bailable warrant for Rs. 5,000/- was issued against the accused. On 26.09.2014, the parties did not
appear. The case was then fixed for further orders. On 29.09.2014 neither the complainant was
present nor the accused, consequently, the complaint was dismissed and accused was acquitted
under Section 256 CrPC. The orders is reiterated underneath:-
2 All. Gopal Prasad Sharma Vs. State of U.P. & Anr.
13

"29.09.2014- Called out. Complainant not present .It is 2:50 p.m. Even on the last date
also complainaning was not present. so, complains is dismissed u/s 256 CrPC and accused is
acquitted. File be consign to RR."

14. This order of learned Magistrate has been challenged in Criminal Revision No. 528 of
2017 [Gopal Prasad Sharma Vs. State of U.P. and Another]. The revision was allowed by order
dated 04.04.2018 setting aside the order dated 29.09.2014. It is directed in the revision that the
learned Magistrate may dispose of the complaint on merit.

15. The learned Magistrate is again seized with the matter. From 10.04.2018 to 30.01.2019,
the summons were continuously issued; from 15.03.2019 to 05.10.2019, the bailable warrants have
been issued; and from 09.12.2019 to 24.01.2024, the Non-bailable Warrants have been issued
against the accused. It is thereafter that the present Application under Section 482 CrPC is filed.

[4. Crl. Misc. Application U/S 482 CrPC No. 12625 of 2024 (Rai Anoop Prasad Vs. State
of U.P. and Another)] :-

16. The Complaint Case No. 78 of 2012 [Gopal Prasad Sharma Vs. Ram Anoop Prasad @ Rai
Anoop Prasad] was filed for dishonor of Cheque No. 598508 dated 26.09.2011 for Rs. 2,50,000/-
drawn on South Indian Bank Ltd, Chitranjan Park Branch, New Delhi, 110019. This cheque was
deposited by the complainant in his Indian Overseas Bank, Kamla Nagar Agra on 27.09.2011 but
the cheque returned unpaid by the Bank. The complainant has contacted the accused, who has
asked for re-presentation of cheque, on which the cheque was again presented on 30.10.2011 and
23.11.2011 but again returned unpaid with the remarks that Funds Insufficient. The information
of dishonor of cheque was intimated by the Bank vide memo dated 24.11.2011. The legal notice
dated 13.12.2011 has been sent and on 24.01.2012 the complaint was filed.The court of Additional
Chief Judicial Magistrate-IV, Agra has taken into consideration the sufficiency of evidence
regarding dishonour of chequeand took cognizance of the offence under Section 138 NI Act,
consequently, issued summons to the accused by order dated 25.02.2012. From 30.03.2012 till
18.06.2014 summons have continuously been issued against the accused. On 14.08.2014, the
bailable warrant for Rs. 5,000/- was issued against the accused. On 26.09.2014, the parties did not
appear. The case was then fixed for further orders. On 29.09.2014 neither the complainant was
present nor the accused, consequently, the complaint was dismissed and accused was acquitted
under Section 256 CrPC. The orders is reiterated underneath:-

"29.09.2014- Called out complainant not present. It is 2:45 p.m. even on the last date of
hearing also, complainant was not present. so, complaint is dismissed u/s 256 CrPC and accused
is acquitted file be consign to RR."

17. This order of learned Magistrate has been challenged in Criminal Revision No. 334 of
2017 [Gopal Prasad Sharma Vs. State of U.P. and Another]. The revision was allowed by order
dated 08.02.2018 setting aside the order dated 29.09.2014. It is directed in the revision that the
learned Magistrate may dispose of the complaint on merit.
14 INDIAN LAW REPORTS ALLAHABAD SERIES

18. The learned Magistrate is again seized with the matter. From 16.03.2018 to 20.06.2023,
the summons were continuously issued; and from 18.09.2023 to 24.01.2024, the bailable warrants
have been issued against the accused. It is thereafter that the present Application under Section 482
CrPC is filed.

[5. Crl. Misc. Application U/S 482 CrPC No. 12953 of 2024 (Rai Anoop Prasad Vs. State
of U.P. and Another)] :-

18. The Complaint Case No. 72 of 2012 [Gopal Prasad Sharma Vs. Ram Anoop Prasad @ Rai
Anoop Prasad] was filed for dishonor of Cheque No. 125833 dated 31.10.2011 for Rs. 5,00,000/-
drawn on South Indian Bank Ltd, Chitranjan Park Branch, New Delhi, 110019. This cheque was
deposited by the complainant in his Indian Overseas Bank, Kamla Nagar Agra on 04.11.2011 but
the cheque returned unpaid by the Bank. The complainant has contacted the accused, who has
asked for re-presentation of cheque, on which the cheque was again presented on 23.11.2011 but
again returned unpaid with the remarks that Funds Insufficient. The information of dishonor of
cheque was intimated by the Bank vide memo dated 23.11.2011. The legal notice dated 13.12.2011
has been sent and on 24.01.2012 the complaint was filed. The court of Additional Chief Judicial
Magistrate-IV, Agra has taken into consideration the sufficiency of evidence regarding dishonour
of cheque and took cognizance of the offence under Section 138 NI Act, consequently, issued
summons to the accused by order dated 25.02.2012. From 30.03.2012 till 18.06.2014 summons
have continuously been issued against the accused. On 14.08.2014, the bailable warrant for Rs.
5,000/- was issued against the accused. On 26.09.2014, the parties did not appear. The case was
then fixed for further orders. On 29.09.2014 neither the complainant was present nor the accused,
consequently, the complaint was dismissed and accused was acquitted under Section 256 CrPC.
The orders is reiterated underneath:-

"29.09.2014- Called out complainant not present .It is 2:50 p.m. even on the last date
also, complainant was not present so, complaint is dismissed u/s 256 CrPC and accused is
acquitted. File be consign to RR."

19. This order of learned Magistrate has been challenged in Criminal Revision No. 530 of
2017 [Gopal Prasad Sharma Vs. State of U.P. and Another]. The revision was allowed by order
dated 04.04.2018 setting aside the order dated 29.09.2014. It is directed in the revision that the
learned Magistrate may dispose of the complaint on merit.

21. The learned Magistrate is again seized with the matter. From 10.04.2018 to 06.04.2019,
the summons were continuously issued; on 22.06.2019, the bailable warrant has been issued; and
from 22.08.2019 to 24.01.2024, the Non-bailable Warrants have been issued against the accused. It
is thereafter that the present Application under Section 482 CrPC is filed.

[6. Crl. Misc. Application U/S 482 CrPC No. 12968 of 2024 (Rai Anoop Prasad Vs. State
of U.P. and Another)] :-

22. The Complaint Case No. 77 of 2012 [Gopal Prasad Sharma Vs. Ram Anoop Prasad @ Rai
Anoop Prasad] was filed for dishonor of Cheque No. 125830 dated 29.10.2011 for Rs. 5,00,000/-
2 All. Gopal Prasad Sharma Vs. State of U.P. & Anr.
15
drawn on South Indian Bank Ltd, Chitranjan Park Branch, New Delhi, 110019. This cheque was
deposited by the complainant in his Indian Overseas Bank, Kamla Nagar Agra on 04.11.2011 but
the cheque returned unpaid by the Bank. The complainant has contacted the accused, who has
asked for re-presentation of cheque, on which the cheque was again presented on 23.11.2011 but
again returned unpaid with the remarks that Funds Insufficient. The information of dishonor of
cheque was intimated by the Bank vide memo dated 24.11.2011. The legal notice dated 13.12.2011
has been sent and on 24.01.2012 the complaint was filed. The court of Additional Chief Judicial
Magistrate-IV, Agra has taken into consideration the sufficiency of evidence regarding dishonour
of cheque and took cognizance of the offence under Section 138 NI Act, consequently, issued
summons to the accused by order dated 25.02.2012. From 30.03.2012 till 18.06.2014 summons
have continuously been issued against the accused. On 14.08.2014, the bailable warrant for Rs.
5,000/- was issued against the accused. On 26.09.2014, the parties did not appear. The case was
then fixed for further orders. On 29.09.2014 neither the complainant was present nor the accused,
consequently, the complaint was dismissed and accused was acquitted under Section 256 CrPC.
The orders is reiterated underneath:-

"29.09.2014- Called out. complainant not present .It is 2:50 p.m. even on the last date
of hearing complainant was not present so, complaint is dismissed u/s 256 CrPC and accused is
acquitted. File be consign to RR."

23. This order of learned Magistrate has been challenged in Criminal Revision No. 527 of
2017 [Gopal Prasad Sharma Vs. State of U.P. and Another]. The revision was allowed by order
dated 04.04.2018 setting aside and the order dated 29.09.2014. It is directed in the revision that the
learned Magistrate may dispose of the complaint on merit.

24. The learned Magistrate is again seized with the matter. From 10.04.2018 to 24.01.2019,
the summons were continuously issued; from 15.03.2019 to 05.10.2019, the bailable warrants have
been issued; and from 09.12.2019 to 24.01.2024, the Non-bailable Warrants have been issued
against the accused. It is thereafter that the present Application under Section 482 CrPC is filed.

[7. Crl. Misc. Application U/S 482 CrPC No. 13016 of 2024 (Rai Anoop Prasad Vs. State
of U.P. and Another)] :-

25. The Complaint Case No. 74 of 2012 [Gopal Prasad Sharma Vs. Ram Anoop Prasad @ Rai
Anoop Prasad] was filed for dishonor of Cheque No. 125832 dated 30.10.2011 for Rs. 5,00,000/-
drawn on South Indian Bank Ltd, Chitranjan Park Branch, New Delhi, 110019. This cheque was
deposited by the complainant in his Indian Overseas Bank, Kamla Nagar Agra on 04.11.2011 but
the cheque returned unpaid by the Bank. The complainant has contacted the accused, who has
asked for re-presentation of cheque, on which the cheque was again presented on 23.11.2011 but
again returned unpaid with the remarks that Funds Insufficient. The information of dishonor of
cheque was intimated by the Bank vide memo dated 24.11.2011. The legal notice dated 13.12.2011
has been sent and on 24.01.2012 the complaint was filed. The court of Additional Chief Judicial
Magistrate-IV, Agra has taken into consideration the sufficiency of evidence regarding the
dishonour of cheque and took cognizance of the offence under Section 138 NI Act, consequently,
issued summons to the accused by order dated 25.02.2012. From 30.03.2012 till 18.06.2014
16 INDIAN LAW REPORTS ALLAHABAD SERIES
summons have continuously been issued against the accused. On 14.08.2014, the bailable warrant
for Rs. 5,000/- was issued against the accused. On 26.09.2014, the parties did not appear. The case
was then fixed for further orders. On 29.09.2014 neither the complainant was present nor the
accused, consequently, the complaint was dismissed and accused was acquitted under Section 256
CrPC. The orders is reiterated underneath:-

"29.09.2014- Called out complainant not present .It is 2:45 p.m. even on the last date of
hearing complainant was not present. so, complaint is dismissed u/s 256 CrPC and accused is
acquitted. File be consign to RR"

26. This order of learned Magistrate has been challenged in Criminal Revision No. 532 of
2017 [Gopal Prasad Sharma Vs. State of U.P. and Another]. The revision was allowed by order
dated 04.04.2018 setting aside the order dated 29.09.2014. It is directed in the revision that the
learned Magistrate may dispose of the complaint on merit.

27. The learned Magistrate is again seized with the matter. From 10.04.2018 to 10.08.2020,
the summons were continuously issued; and from 31.03.2022 to 24.01.2024, the Non-bailable
Warrants have been issued against the accused. It is thereafter that the present Application under
Section 482 CrPC is filed.

[8. Crl. Misc. Application U/S 482 CrPC No. 13020 of 2024 (Rai Anoop Prasad Vs. State
of U.P. and Another)] :-

28. The Complaint Case No. 75 of 2012 [Gopal Prasad Sharma Vs. Ram Anoop Prasad @ Rai
Anoop Prasad] was filed for dishonor of Cheque No. 125831 dated 28.10.2011 for Rs. 5,00,000/-
drawn on South Indian Bank Ltd, Chitranjan Park Branch, New Delhi, 110019. This cheque was
deposited by the complainant in his Indian Overseas Bank, Kamla Nagar Agra on 04.11.2011 but
the cheque returned unpaid by the Bank. The complainant has contacted the accused, who has
asked for re-presentation of cheque, on which the cheque was again presented on 23.11.2011 but
again returned unpaid with the remarks that "Funds Insufficient". The information of dishonor of
cheque was intimated by the Bank vide memo dated 24.11.2011. The legal notice dated 13.12.2011
has been sent and on 24.01.2012 the complaint was filed. The court of Additional Chief Judicial
Magistrate-IV, Agra has taken into consideration the sufficiency of evidence regarding dishonour
of cheque and took cognizance of the offence under Section 138 NI Act, consequently, issued
summons to the accused by order dated 25.02.2012. From30.03.2012 till 18.06.2014 summons
have continuously been issued against the accused. On 14.08.2014, the bailable warrant for Rs.
5,000/- was issued against the accused. On 26.09.2014, the parties did not appear. The case was
then fixed for further orders. On 29.09.2014 neither the complainant was present nor the accused,
consequently, the complaint was dismissed and accused was acquitted under Section 256 CrPC.
The orders is reiterated underneath:-

"29.09.2014- Called out. complainant not present .It is 2:50 p.m. even on the last date of
hearing also complainant was not present so, complaint is dismissed u/s 256 CrPC and accused is
acquitted. File be consign to RR."
2 All. Gopal Prasad Sharma Vs. State of U.P. & Anr.
17

29. This order of learned Magistrate has been challenged in Criminal Revision No. 531 of
2017 [Gopal Prasad Sharma Vs. State of U.P. and Another]. The revision was allowed by order
dated 04.04.2018 setting aside the order dated 29.09.2014. It is directed in the revision that the
learned Magistrate may dispose of the complaint on merit.

30. The learned Magistrate is again seized with the matter. From 10.04.2018 to 10.05.2018,
the summons were continuously issued; from 12.07.2018 to 10.08.2020, the bailable warrants have
been issued; and from 31.03.2022 to 24.01.2024, the Non-bailable Warrants have been issued
against the accused. It is thereafter that the present Application under Section 482 CrPC is filed.

31. Learned Senior Advocate appearing for the accused submits that the revisional court (
Additional Sessions court) has exercised the jurisdiction of revision, which is not applicable in the
present matter, where the accused has been acquitted in the Complaint Case for an offence under
Section 138 N.I. Act by the Magistrate. The proper remedy available to the complainant was to
prefer Leave to Appeal under Section 378(4) CrPC. Further submits that Section 401(4) CrPC
clearly bars the jurisdiction of revision where the provision of appeal is provided in the Code.
Hence, submitted that the applications are liable to be allowed and the impugned order of revisional
court, whereby the order of acquittal has been set aside by the revisional court, shall be quashed
and consequently proceedings pending before the Magistrate shall also be quashed. Learned
counsel has relied upon the pronouncements in cases of Abhishek Mishra @ Pintu Vs. State of
U.P. and Anr.1, Vinay Kumar Vs. State of U.P. and Anr.2, Associated Cement Co. Ltd. Vs.
Keshvanand3, S. Anand Vs. Vasumathi Chandrasekar4, S.Rama Krishna Vs. S.Rama Reddy
(Dead) by His Lrs & Ors., BLS Infrastructure Ltd. Vs. Rajwant Singh & Ors.6, Anil Kumar
Agarwal Vs. State of UP & Anr. and Shitala Baksh Singh Vs. State of U.P. through Secretary
(Home) and Another. It is further submitted that the order passed by the revisional court is also
bad in the eye of law, because no opportunity has been granted by the revisional court to the
accused to defend the order of Magistrate passed in his favour for acquittal. This opportunity is
provided under Section 401(2) CrPC. He relied upon the judgments of Hon'ble Supreme Court in
the cases of Manharibhari Muljibhai Kakadia Vs. Shaileshbhai Mohanbhai Patel & Ors9, P.
Sundarrajan & Ors Vs. R. Vidhya Sekar10 and Subhash Sahebrao Deshmukh Vs. Satish
Atmaram Talekar & Ors. It is further submitted that even otherwise the cognizance taking order
passed by the Judicial Magistrate is bad in the eyes of law.

32. He further submits that the Magistrate has committed error in issuing the summons and
taking cognizance of offence under Section 138 of N.I.Act against the accused because the cheque
has been issued by a company and without impleading the company or taking cognizance against
the Director of the company the accused has been summoned in personal capacity. Further submits
that the cognizance order is also bad in the eyes of law as the complaint does not disclose that the
account from which the cheque was issued was in the name of accused and therefore, the
cognizance taking order as well as the summons issued against the accused is bad in the eyes of law
and on this count as well, the summoning order issued by the Magistrate shall be quashed. In
substantiation of arguments, the learned counsel has relied on the judgments of Hon'ble Supreme
Court in the cases of Jugesh Sehgal Vs. Shamsher Singh Gogi12, PJ Agro Tech Limited and
others Vs. Water Base Limited13 and Aneeta Hadra Vs. Godfather Travels Pvt. Limited.
18 INDIAN LAW REPORTS ALLAHABAD SERIES

33. Per contra, learned counsel for the complainant and learned AGA have submitted that
larger Bench in Abhishek Mishra @ Pintu Vs. State of U.P. and Anr. by order dated 05.04.2025
has opined that the reference needs no deliberation and does not deserve to be answered. Learned
counsel further submits that Hon'ble Supreme Court in the case of In Re:- Expeditious Trial of
Cases under Section 138 of N.I. Act 1881 has issued general directions for expeditious disposal of
the cases pertaining to dishonour of cheque. Further submits that the accused has willfully not
appeared in the cases of dishonour of cheque and it is in the absence of the accused that the
Magistrate has dismissed the complaint invoking Section 256 CrPC, against which the complainant
has file the revision petitions, which were rightly allowed by the revisional court. Further submits
that the conduct of accused throughout the case about deceiving the summons, on one pretext or the
other is with the motive of not returning the money advanced, given for the purchase of flat to the
accused which has not been advanced to any company, therefore, impleading of a company or
invoking of Section 141 of N.I.Act is not required and therefore, the complaint was filed against the
accused in personal capacity. Further submits that the cheques have been issued by the accused to
pay the debt, which were dishonoured hence, the complaint, as the notice was not complied. The
intention of accused is still clear and explicit that he does not want to return the money even after
fourteen long years have elapsed. The accused is an unscrupulous litigant, hence the applications
filed by the accused shall be dismissed.

34. This Court has taken into consideration the rival submissions made by the parties and
perused the record.

35. The factual matrix of the case requires reiteration for deliberations to ponder on the legal
perspective. The complainant has filed eight complaints under Section 138 N.I.Act against the
accused for dishonour of cheque in which learned Magistrate has issued processes under Section
204 CrPC on 25.02.2012. The processes (summons and bailable warrants) have been issued for two
years, but the accused did not appear. On 29.09.2014, the Magistrate, in absence of complainant
and accused has dismissed the complaint, specifically mentioning acquittal of accused under
Section 256 CrPC. At the very threshold, it is required to be pointed out that learned counsel for the
accused has not placed any judgment, wherein this fact has been considered by either Hon'ble the
Supreme Court or by the High Court regarding the remedy in appeal under Section 378 CrPC or
revision under Section 397 read with Section 401 CrPC.

36. It is an admitted fact that the complainant has filed criminal revision invoking Section 397
read with Section 401 CrPC before the court of Sessions to assail the order dated 29.09.2014
passed by the Magistrate, acquitting the accused by dismissing the complaint and the Additional
Sessions Court, while invoking revisional jurisdiction has allowed the revision petitions, setting
aside the orders dated 29.09.2014 passed by the Magistrate.

37. The record reflects that the complainant was continuously appearing before the court of
Magistrate, taking steps for service of summons and bailable warrants for procuring the presence of
accused, as is provided under Section 204(4) Cr.P.C., reiterates "When by any law for the time
being in force any process- fees or other fees are payable, no process shall be issued until the
fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss
the complaint."
2 All. Gopal Prasad Sharma Vs. State of U.P. & Anr.
19

38. The record further reveals that the Magistrate has continuously issued summons to the
accused from 25.02.2012 till 18.06.2014. On 14.08.2014, the complainant was present and bailable
warrant of Rs. 5000/- was issued against the accused fixing 27.09.2014 as the next date. On
27.09.2014 the case was fixed for further orders, revealing therein that the parties were not present,
there is no satisfaction of the court as to the service of bailable warrant upon the accused. It is also
a point to be considered that on 27.09.2014, the court has fixed 29.09.2014, after the gap of a day,
on which date, the Magistrate has dismissed the complaint in absence of the complainant and
acquitted the accused.

39. Thus the points of concern are :-

(i) Whether the complainant has not taken the steps for service of summons and
processes, as is required under Section 204(4) CrPC which provides power to the Magistrate to
dismiss the complaint?

(ii) Whether the accused could be acquitted without appearing in a complaint?

(iii) Whether the requirement of section 256 CrPC has been complied by the
Magistrate, which requires the presence of complainant on the date of adjourned hearing?

(iv) Whether the Magistrate was having any evidence on record at post cognizance
stage, subsequent to the passing of cognizance taking order dated 25.02.2012, till dismissing the
complaint on 29.09.2014, which could be considered for the acquittal of accused?