# Kamal Chand Patel v. State of U.P. & Anr

- **Citation:** (2020) 11 ILRA 61
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-06
- **Case number:** Application U/S 482 No. 12997 of 2020
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamal-chand-patel-v-state-of-u-p-anr-45428
- **Pages:** 5

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 482 - Negotiable
Instrument
Act,
1881-Sections
138quashing of entire proceeding-admitted
fact of issuance of cheque is there,
dishonour of
it
by
bank
concerned,
dishonour memo and receipt of issuance
of
notice
to
accused/applicant
by
complainant by registered post is there
and non-payment of amount is also
undisputed- Hence, prima facie case for
issuance of process for offence punishable
u/s 138 N.I. Act, but those facts were to
be decided by trial court after getting
evidence-quashing of complaint case is
refused.(Para 2 to 11)

B. In exercising jurisdiction u/s 482 CrPC
High Court would not embark upon an
enquiry whether the allegations in the
complaint are likely to be established by
evidence or not.it has to be exercised
sparingly, carefully and with caution and
only when such exercise is justified by the
tests specifically laid down in the section
itself.(Para 9,10)

The application is dismissed. (E-6)

List of Cases Cited:-

## Text

11 All. Kamal Chand Patel Vs. State of U.P. & Anr.
61
Dhanlakshmi v. R.Prasana Kumar, (1990)
Cr LJ 320 (DB): AIR 1990 SC 494 has
propounded "To prevent abuse of the
process of the Court, High Court in
exercise of its inherent powers under
section 482 could quash the proceedings
but there would be justification for
interference only when the complaint did
not disclose any offence or was frivolous
vexatious or oppressive" as well as in State
of Bihar v. Murad Ali Khan, (1989) Cr LJ
1005: AIR 1989 SC 1, Apex Court
propounded "In exercising jurisdiction
under Section 482 High Court would not
embark upon an enquiry whether the
allegations in the complaint are likely to be
established by evidence or not".

9. Meaning thereby, exercise of
inherent jurisdiction under Section 482
Cr.P.C. is within the limits, propounded as
above.

10. Accordingly, there remains
nothing
for
any
indulgence
in
this
proceeding. The prayer for quashing
summoning order as well as proceeding of
the aforesaid complaint case is refused and
the application u/s 482 Cr.P.C. is hereby
dismissed.
----------

(2020)11ILR A61
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.10.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 12997 of 2020

Kamal Chand Patel ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ravindra Kumar, Sri Arun Kumar Goyal

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

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 482 - Negotiable
Instrument
Act,
1881-Sections
138quashing of entire proceeding-admitted
fact of issuance of cheque is there,
dishonour of
it
by
bank
concerned,
dishonour memo and receipt of issuance
of
notice
to
accused/applicant
by
complainant by registered post is there
and non-payment of amount is also
undisputed- Hence, prima facie case for
issuance of process for offence punishable
u/s 138 N.I. Act, but those facts were to
be decided by trial court after getting
evidence-quashing of complaint case is
refused.(Para 2 to 11)

B. In exercising jurisdiction u/s 482 CrPC
High Court would not embark upon an
enquiry whether the allegations in the
complaint are likely to be established by
evidence or not.it has to be exercised
sparingly, carefully and with caution and
only when such exercise is justified by the
tests specifically laid down in the section
itself.(Para 9,10)

The application is dismissed. (E-6)

List of Cases Cited:-

1. Fiona Shri khande Vs St. of Mah. & anr.,
(2014) AIR SC 957,

2. St. of A.P. Vs Gaurishetty Mahesh, JT (2010)
6 SC 588: (2010) 6 SCALE 767: (2010) Cr L J
3844

3. Hamida Vs Rashid, (2008) 1 SCC 474

4. Monica Kumar Vs St. of U.P. ,( 2008) 8 SCC
781

5. Popular Muthiah Vs St. Reprtd. by Inspector
of Police , (2006) 7 SCC 296
62 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Dhanlakshmi Vs R. Prasana kumar, (1990) Cr
L J 320 (DB): (1990) AIR SC 494

7. St. of Bih. Vs Murad Ali khan , (1989) Cr L J
1005: AIR (1989) SC 1

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. Heard learned counsel for the
applicants and learned A.G.A. representing
the State. Perused the records.

2. This application under Section 482
Cr.P.C. has been filed by applicant Kamal
Chand Patel against State of U.P. and
another with prayer to quash impugned
order dated 21.1.2020 as well as entire
proceedings of Complaint Case No. 1850
of 2017, under Section 138 of N. I. Act,
Mohd. Habib Vs. Kamal Chand Patel, P.S.
Soraon, district Allahabad, pending in court
of Special Judge N.I. Act, Allahabad.

3. Learned counsel for the applicants
argued that entire proceeding of complaint
case is an abuse of process of law. It was a
pre-matured complaint because there is no
mention of date of service of legal notice,
whereas it was served upon applicant on
01.12.2017 and without expiry of 15 days
period, this complaint has been filed. The
cheque was dishonoured for the first time
on 13.9.2017 and there is endorsement of
above dishonour, but for creating a cause of
action for limitation, it was falsely stated
that it was subsequently presented for
encashment, but it was again dishonoured,
whereas no such presentation was there.
This cheque was in lieu of security and it
was not on account of any liability. It was
misused for which an F.I.R. has been
lodged by way of an application u/s 156(3)
Cr.P.C. against complainant. Besides those
legal defects, this summoning order was
there. Hence an application for discharge
was moved and it too was rejected vide
order dated 21.1.2020, without considering
the facts written therein. Those contents
were not written in the impugned order.
Thus, entire proceeding of complaint case
as well as impugned order passed on
discharge application is under abuse of
process of law. Hence this application with
above prayer.

4. Learned counsel for applicant has
cited order of learned Single Bench of this
court passed in Criminal Misc. Application
No. 27216 of 2010 decided on 01.10.2012,
Vijay Kumar Upadhyay Vs. State of U.P.
and another, wherein it has been held that
cheque issued as security and towards
payment of amount and if it was
dishonoured, it is an offence in view of
provisions of Section 138 of N.I. Act. But
cheque given in security is not covered u/s
138 of N. I. Act.

5. Learned A.G.A. has vehemently
opposed the above argument.

6. From the very perusal of complaint,
annexed at page no. 58 of paper book, it is
apparent that it was filed by Mohd. Habib
against accused-applicant Kamal Chand
Patel
with
this
contention
that
the
complainant was owner in possession of
agricultural land of plot no. 70 situate in
Mauza Saraibrisingh alias Sarai Bahar,
Tehsil Soraon, District Allahabad. A portion
of aforesaid plot measuring 30 Ft x 60 Ft.
was alienated for an amount of Rs. 12 lacs
by way of registered sale deed dated
28.8.2017 and consideration of Rs. 12 lacs
was paid by way of cheques, two cheques
for Rs. Three lacs and Rs. Two lacs were
issued in favour of Rizwan Ahmad, another
cheque for Rs. Three lacs was issued in
favour of Faizan Ahmad and yet another
cheque for Rs. Two lacs Ninety thousand
11 All. Kamal Chand Patel Vs. State of U.P. & Anr.
63
was issued in favour of complainant against
above sale consideration. When this cheque
was presented by the complainant before
bank for encashment, it was dishonoured.
This was complained to the drawer, who
assured for its payment on subsequent
presentation. This cheque was presented.
Subsequently, it was dishonoured on
01.11.2017. A legal notice by way of
registered post dated 10.11.2017 was issued
to the applicant, receipt of this registered
post was annexed with the complaint and
after receipt of above notice, payment was
not made, then after this complaint was
filed before above court on 11.12.2017 i.e.
after lapse of 30 days from the date of
issuance of notice by registered post. Now
it is being stated that notice was received
by accused-applicant on 01.12.2017 and
complaint was pre-marute. Now it is a
question of fact to be seen by the trial court
by way of evidence, as to whether the
notice was served on 01.12.2017 or it was
delivered within three days of its posting by
registered post. The issuance of cheque is
an undisputed fact. Now whether it was
against security or against consideration for
execution of above sale deed is again a
question of fact to be seen by trial court
after evidence. The Apex Court in Fiona
Shri Khande vs. State of Maharashtra and
another, AIR 2014, Supreme Court 957,
has held that the Magistrate is not expected
to analytically analyze all facts and
evidence at the stage of issuing process u/s
204 Cr.P.C. Rather at that time, only primafacie case for issuance of process is to be
seen. In the present case, admitted fact of
issuance of cheque is there, dishonour of it
by bank concerned, dishonour memo and
receipt of issuance of notice to accused-
applicant by complainant by registered post
is there and non-payment of above amount
is also undisputed. Hence on the basis of
above facts, prima-facie case for issuance
of process for offence punishable u/s 138
Act of N.I. Act was there and accordingly,
it was done so.

7. The accused appeared with making
contentions, as above, but those facts were
to be decided by trial court after getting
evidence and till disposal of application 9B
moved for discharge, there was no fact at
all except the grounds for summoning.
Hence pre trial acquittal or without giving
evidence to make decision making disposal
of complaint was not made by trial court
and there was no abuse of process in both
of above proceedings. The fact involved in
above proceeding, cited by learned counsel
for applicant, is entirely different than the
fact in hand. In above precedent, the money
was held to be advanced as a security
cheque, but in the present case the
complaint version is that cheque was issued
against payment of consideration for
alienating landed property by way of
registered
sale
deed.
Hence,
above
procedent is of no effect to the accused at
this juncture. Accordingly, the points raised
relate to facts, as per law.

8. This court in exercise of its
inherent jurisdiction u/s 482 Cr.P.C. is not
expected to meticulously analyse the facts
and evidence as it is matter of trial to be
seen during trial.

9. Saving of inherent power of High
Court, as given under Section 482 Cr.P.C,
provides that nothing in this Code shall be
deemed to limit or affect the inherent
powers of the High Court to make such
orders as may be necessary to give effect to
any order under this Code, or to prevent
abuse of the process of any Court or
otherwise to secure the ends of justice.
Meaning thereby this inherent power is
with High Court (I) to make such order as
64 INDIAN LAW REPORTS ALLAHABAD SERIES
may be necessary to give effect to any other
order under this Code (II) to prevent abuse
of the process of any Court (III) or
otherwise to secure the ends of justice. But
Apex Court in State of Andhra Pradesh v.
Gaurishetty Mahesh, JT 2010 (6) SC 588:
(2010) 6 SCALE 767: 2010 Cr. LJ 3844
has propounded that "While exercising
jurisdiction under section 482 of the
Code,
the
High
Court
would
not
ordinarily embark upon an enquiry
whether the evidence in question is
reliable
or
not
or
whether
on a
reasonable apprehension of it accusation
would not be sustained. That is the
function of the trial Judge/Court". In
another subsequent Hamida v. Rashid,
(2008) 1 SCC 474, hon'ble Apex Court
propounded that "Ends of justice would
be better served if valuable time of the
Court is spent in hearing those appeals
rather than entertaining petitions under
Section 482 at an interlocutory stage
which after filed with some oblique
motive in order to circumvent the
prescribed procedure, or to delay the trial
which enable to win over the witness or
may disinterested in giving evidence,
ultimately resulting in miscarriage of
Justice". In again another subsequent
Monica
Kumar
v.
State
of
Uttar
Pradesh, (2008) 8 SCC 781, the Apex
Court
has
propounded
"Inherent
jurisdiction under Section 482 has to be
exercised sparingly, carefully and with
caution and only when such exercise is
justified by the tests specifically laid
down in the section itself." While
interpreting this jurisdiction of High
Court Apex Court in Popular Muthiah v.
State, Represented by Inspector of
Police,
(2006)
7
SCC
296
has
propounded "High Court can exercise
jurisdiction suo motu in the interest of
justice. It can do so while exercising
other jurisdictions such as appellate or
revisional
jurisdiction.
No
formal
application
for
invoking
inherent
jurisdiction
is
necessary.
Inherent
jurisdiction can be exercised in respect of
substantive
as
well
as
procedural
matters. It can as well be exercised in
respect of incidental or supplemental
power
irrespective
of
nature
of
proceedings".

10. Regarding prevention of abuse
of process of Court, Apex Court in
Dhanlakshmi
v.
R.Prasana
Kumar,
(1990) Cr LJ 320 (DB): AIR 1990 SC
494 has propounded "To prevent abuse of
the process of the Court, High Court in
exercise of its inherent powers under
section 482 could quash the proceedings
but there would be justification for
interference only when the complaint did
not disclose any offence or was frivolous
vexatious or oppressive" as well as in
State of Bihar v. Murad Ali Khan,
(1989) Cr LJ 1005: AIR 1989 SC 1,
Apex Court propounded "In exercising
jurisdiction under Section 482 High
Court would not embark upon an enquiry
whether the allegations in the complaint
are likely to be established by evidence or
not".

11. Meaning thereby, exercise of
inherent jurisdiction under Section 482
Cr.P.C. is within the limits, propounded
as above. This court is not to make any
comment on factual matrix because the
same remains within the domain of trial
court.

12. Accordingly, there remains
nothing for any indulgence in this
proceeding. The prayer for quashing the
impugned order as well as proceeding of
the aforesaid complaint case is refused
11 All. Daroga & Ors. Vs. State of U.P. & Anr.
65
and the application u/s 482 Cr.P.C. is
hereby dismissed.
----------
(2020)11ILR A65
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.04.2020

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Application U/S 482 No. 13698 of 2005

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

Counsel for the Applicants:
Sri Neeraj Singh

Counsel for the Opposite Parties:
A.G.A., Sri K.N. Mishra, Sri R.K. Sahi

(A) Criminal law - Indian Penal Code,
1860 - Sections 147, 149, 323, 452, 435,
504 and 506 - Police has power to make
further investigation under Section 173(8)
Cr.P.C.
-
normally
permission
of
Magistrate should
be obtained when
seized with the matter and charge-sheet
submitted - mere non obtaining of
permission
from
Magistrate
further
investigation, if any, made by Police would
not be per se vitiated - Charge-sheet
including summoning order quashed. Para
- 8,12

Applicants challenged subsequent investigation
and second charge-sheet - ground - reinvestigation is not permissible - without
permission of Magistrate, Police could not have
proceeded for further investigation at all - order
of transfer of investigation obtained/ passed
without considering the fact that investigation
was already complete and charge-sheet was
submitted before Magistrate.Para - 6,13

HELD:- The material fact that the order of
transfer of investigation
obtained/ passed
without considering the fact that investigation
was already complete and charge-sheet was
submitted before Magistrate has not been
considered by Superintendent of Police and
further investigation has been made at P.S.
Salempur Deoria, in my view, it amounts to
gross abuse of process of law and second
charge-sheet for offences which included the
offences which were not inflicted in earlier
charge-sheet is vitiated in law.Para - 13

Application u/s 482 Cr.P.C. allowed. (E -7)

List of Cases Cited:-

1. Hasanbhai Valibhai Qureshi Vs St. of Guj. ,
2004 AIR SCW 2063

2. K. Chandra Sekhar Vs St. of Ker. , 1998 (37)
ACC 136.

3. Awdhesh Kumar Jha @ Akhilesh Kumar Jha &
anr. Vs St. of Bih. , (2016) 3 SCC 8

4. Rama Chaudhary Vs St. of Bih. , (2009) 6
SCC 346

5. Sri Bhagwan Samardha Sreepada Vallabha
Venkata Vishwandadha Maharaj Vs St. of A.P. &
ors. , 1999 Cri.L.J. 3661 (SC)

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Neeraj Singh, Advocate,
for applicants and learned A.G.A. for State.

2. This is an application under Section
482 Cr.P.C. filed by five applicants,
Daroga, Rakesh, Chandrika, Pramod and
Manoj, with a prayer to quash Case No.
1278 of 2005 under Sections 147, 149, 323,
452, 435, 504 and 506 I.P.C. P.S. Bankata,
District Deoria arising from Case Crime
No. 3 of 2005 and pending in the Court of
Judicial Magistrate, Court-11, Deoria.

3. Facts in brief giving rise to present
application
are
that
Uma
Shankar
Kushwaha, opposite party-2, (hereinafter
referred to as informant-complainant) filed