# Lal Chandra Shukla v. State of U.P. Opp. Party

- **Citation:** (2022) 6 ILRA 144
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-30
- **Case number:** Application U/S 378 No. 3 of 2022
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lal-chandra-shukla-v-state-of-u-p-opp-party-48648
- **Pages:** 5

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 254, 256, 262,
263, 264, 265 and 378(4) - Indian
Negotiable Instrument Act, 1881 - Section
138, 143, 145: - Application to grant
'Special Leave to Appeal' - Rejection of a
Complaint case in a summery trial by
invoking provisions of Summon trial -
Court
below
travelled
beyond
its
jurisdiction
-
Application
allowed
-
impugned judgment & order set aside -
Trial
court
directed
to
proceed
accordingly. (Para - 15, 17, 18, 19, 21)

Application
(U/s
378)
is
allowed,
judgment and order of Trial court is set
aside. (E-11)

List of Cases cited: -

## Text

144 INDIAN LAW REPORTS ALLAHABAD SERIES

26. The last issue raised by the
revisionists-defendants
is
improper
communication of sale deed. This cannot
be accepted for the reason that notice has
properly
been
served,
revisionistsdefendants have accepted the change of
landlordship in their written statements and
also payment of Rs. 32/- per month under
Section 30 of U.P. Act No. 13 of 1972. It
clearly shows that they are having full
knowledge of change of landlordship after
receiving the notice and admitted the same
in their written statements. Once they have
knowledge of change of landlordship, that
cannot be without having knowledge of
sale deed, therefore, this cannot also be
ground for interference by this Court.

27. Therefore, under such facts of the
case and law laid down by the Courts, I
found no good reason to interfere in the
impugned judgment and order. Revision
lacks merit and is accordingly, dismissed.
No order as to costs.
----------
(2022)06ILR A144
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.05.2022

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 378 No. 3 of 2022

Lal Chandra Shukla ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Rama Pati Shukla

Counsel for the Respondents:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 254, 256, 262,
263, 264, 265 and 378(4) - Indian
Negotiable Instrument Act, 1881 - Section
138, 143, 145: - Application to grant
'Special Leave to Appeal' - Rejection of a
Complaint case in a summery trial by
invoking provisions of Summon trial -
Court
below
travelled
beyond
its
jurisdiction
-
Application
allowed
-
impugned judgment & order set aside -
Trial
court
directed
to
proceed
accordingly. (Para - 15, 17, 18, 19, 21)

Application
(U/s
378)
is
allowed,
judgment and order of Trial court is set
aside. (E-11)

List of Cases cited: -

1. Suo Moto WP (Criminal) No. 2/2020 Decided
on 16.04.2021,

2. Pooja Sharma Vs Suresh Kumar, Criminal
Appeal No. 469 of 2018 decided on 04.01.2019

3. C.K. Sivaraman Achari Vs D.K. Agarwall &
ors., 1978 CriLJ 1376

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Rama Pati Shukla,
learned counsel for the applicant/appellant,
Sri Anirudh Kumar Singh, learned A.G.A.-I
for the State, and perused the record.

2. This application has been filed with
the prayer to grant Special Leave to
Appeal, which is sought to be preferred
against the order dated 23rd of December
2021 passed by the Additional Court,
Faizabad whereby the Complaint Case No.
222 of 2021 filed by the complainant under
Section 138 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as 'the
N.I. Act'), Police Station Kotwali Ayodhya,
District Faizabad was rejected.

3. Learned counsel for the applicant
submits that legal question is involved in
6 All. Lal Chandra Shukla Vs. State of U.P.
145
the matter as to whether the Magistrate,
while invoking the provision under Section
138 and 143 of the N.I. Act can proceed
matter as a summon trial. Further whether
Section 256 of the Indian Penal Code can
be invoked without assigning reasons while
proceeding with the summary trial under
Section 143 of the N.I. Act.

4. Learned counsel for the applicant
submits that the Court cannot proceed under
Section 256 as the order impugned dated
23rd of December 2021 has been passed
invoking the jurisdiction under Section 256
of the I.P.C. whereas the matter is to proceed
as summary trial and the same will proceed
as per the provisions of Section 262 to 265
of the Criminal Procedure Code.

5.

Considering
the
aforesaid
provisions as well as going through the
record, it is evident that a pure legal
question is involved in this matter and,
prima facie, it seems that the Magistrate
has wrongly invoked the jurisdiction
under Section 256 of the Cr.P.C. In such
view of the matter, the application of the
applicant with the prayer to grant leave to
appeal under Section 378 (4) of the
Cr.P.C. is hereby allowed.

6. Leave to appeal is granted.

7. The factual matrix of the case is that
Complaint Case No. 222 of 2021, Lal
Chandra Shukla Vs. Rajdev, under Section
138 of the N.I. Act was filed on the ground
that in the month of January 2015, an amount
of Rs.20 lakhs was taken by the accusedrespondent no.2 as debt and respondent no.2
promised that he will return the aforesaid
debt amount within a period of one year. The
said amount was not returned to the appellant
within the time as was promised by the
respondent no.2.

8. The appellant, when asked about
repayment of the aforesaid debt, the
respondent
no.2
issued
two
cheques
(bearing nos. 666167 and 666168) each for
an amount of Rs.10 lakhs of his Account
No.10294106494 of State Bank of India,
Branch Faizabad, District Faizabad (now
Ayodhya). On receiving the aforesaid
cheques, the appellant presented the same
on 1st/2nd of February 2017 in his bank
account of Bank of Baroda, U.P. Gramin
Bank,
Ayodhya.
On
the
aforesaid
presentation of the cheques, the bank
informed the appellant on 4th of February
2017 that those cheques issued by the
respondent no.2 were dishonoured due to
insufficient fund in the account of the
respondent no.2. On receiving the aforesaid
information, the appellant sent notice under
Section 138 of the N.I. Act to the
respondent no.2, which he has refused to
receive.

9. In the aforesaid circumstances, the
appellant presented the appeal before the
Chief
Judicial
Magistrate,
District
Faizabad,
which
was
transferred
for
hearing to the Additional Court.

10. After the institution of the
aforesaid case, the learned trial court taking
the recourse as provided under Chapter XV
of the Criminal Procedure Code, 1973
(hereinafter referred to as 'the Cr.P.C.')
issued summons and, after the service of
summons, when the respondent no.2 did
not appear before the trial court, bailable
warrants were issued and, in case of noncompliance of the same, non-bailable
warrants were also issued against the
respondent no.2. After issuance of the
aforesaid
non-bailable
warrant,
the
respondent no.2 appeared before the trial
court on 7th of January 2020 and applied
for bail. On such application for bail of the
146 INDIAN LAW REPORTS ALLAHABAD SERIES
accused/respondent, the trial court released
the respondent no.2 on bail.

11. The respondent no.2 submitted
evidence by way of invoking the provision
of Section 254 of the Cr.P.C. on 14th of
October 2020 and, thereafter, the case was
fixed
on
18.11.2020
for
his
crossexamination. The evidence was taken on
affidavit by the trial court under the
provision of Section 145 of the N.I. Act.

12. Learned counsel for the appellant
further submits that after release on bail,
the respondent no.2 again remained absent
adopting dilly dallying tactics and he did
not appear on several dates, which were
fixed for cross-examination. On 23rd of
February 2021, non-bailable warrant was
again issued and personal bond was
forfeited. Later on, furnishing the personal
bond on 16th of September 2021, nonbailable warrant was cancelled and the case
was fixed for 28th of October 2021 wherein
the respondent no.2 had again moved an
application for exemption of his personal
appearance.

13. He submits that it is evident from
the order sheet that on 28th of October
2021, the case was directed to be listed on
16th of September 2021 which prima facie
is impossible. On 16th of September 2021,
there is an order that the personal
appearance of the respondent no.2 is
exempted and the appellant has been shown
as absent on that date, and the case was
posted for 23rd of September 2021 on
which date the respondent no.2 and the
appellant both have been shown absent
though the presence of the respondent no.2
was exempted through his advocate. He
added that the order sheet reveals that the
appellant remained present on each and
every date when the case was fixed by the
trial court but, at the same time, it is also
evident that the respondent no.2 remained
absent on many of the dates and he could
appear only when the non-bailable warrant
was issued and then again he absented
himself.

14. He argued that in fact it seems
that something has been played by the
Reader of the trial court behind the back
while fixing the date so as to make an
illusion to the appellant. He submits that
the case was fixed for cross-examination of
the appellant on 28th of October 2021 on
which date the appellant could not appear
as wrong date was told by the Reader of the
trial court, who did not show his paper
book. The next date was fixed for 9th of
December 2021 and the appellant could not
appear on 9th of December 2021 as the
same was not informed and on 9th of
December 2021, date was fixed for 23rd of
December 2021 when the complaint filed
by the appellant was dismissed.

15. He further submits that the matter
pertains to N.I. Act and in Section 143 of the
N.I. Act, it has been provided that
notwithstanding anything contained in the
Code of Criminal Procedure, 1973, all
offences under this Chapter shall be tried by a
Judicial Magistrate of the first class or by a
Metropolitan Magistrate and the provisions of
Sections 262 to 265 of the said Code shall, as
far as may be, apply to such trials. He
submits that in such view of the matter, the
proceeding under the N.I. Act goes as per the
procedure provided for summary trial. He
further added that there is specific mention in
the provision that if Magistrate has to alter
the trial from summary trial to summon trial,
he has to provide opportunity to the parties
and has to record reasons. As instant case has
not been converted from summary trial to
summon trial, therefore, the provisions of
6 All. Lal Chandra Shukla Vs. State of U.P.
147
Section 256 of the Cr.P.C. shall not attract in
the instant matter. As such, the trial court has
invoked the provision of the summon trial
and has gone against the mandatory provision
of the Act. He also added that the Section 256
of the Code provides the procedure with
regard to the trial of summon cases and this
could not have been invoked in case of a
summary trial. He submits that since the
Additional Court, Faizabad has passed the
order against the procedure prescribed under
the law and, as such, the same assails
illegality and infirmity. In support of his
submissions,
learned
counsel
for
the
appellant has placed reliance on the Judgment
of Apex Court in Suo Motu Writ Petition
(Crl.) No. 2 of 2020 decided on April 16,
2021; Judgment dated 4.1.2019 passed by the
High Court of Himachal Pradesh, Shimla in
Criminal Appeal No. 469 of 2018, Pooja
Sharma Vs. Suresh Kumar; and Judgment
of Kerala High Court in C.K. Sivaraman
Achari Vs. D.K. Agarwall and others, 1978
CriLJ 1376.

16. On the other hand, learned counsel
for the State has very vehemently opposed
the contention aforesaid and submits that the
order passed by the Additional Court does not
assail any illegality or infirmity. He submits
that it seems that the appellant did not appear
on several dates like 28th of October 2021,
9th of December 2021 and 13th of December
2021 and, as such, the trial court has rejected
the complaint of the appellant. Learned
counsel for the State has also added that in
fact the Additional Court has rightly invoked
the provisions of Section 256 of the Cr.P.C. as
the same envisages the provision with regard
to the non-appearance or death of the
complainant. Section 256 of the Cr.P.C. are
quoted hereunder:-

"256. Non-appearance or death of
complainant.-(1) If the summons has been
issued on complaint, and on the day
appointed for the appearance of the
accused, or any day subsequent thereto to
which the hearing may be adjourned, the
complainant
does
not
appear,
the
Magistrate shall, notwithstanding anything
hereinbefore contained, acquit the accused,
unless for some reason he thinks it proper
to adjourn the hearing of the case to some
other day:

Provided that where the complainant
is represented by a pleader or by the officer
conducting the prosecution or where the
Magistrate is of opinion that the personal
attendance of the complainant is not
necessary, the Magistrate may dispense
with his attendance and proceed with the
case.
(2) The provisions of sub-section (1) shall,
so far as may be, apply also to cases where
the non-appearance of the complainant is
due to his death."

17. Referring the aforesaid provisions, he
submits that in case of non-appearance of
the complainant, if the Magistrate thinks it
fit, he may acquit the accused and reject the
complaint. He further submits that it is
wisdom of the trial court concerned to
proceed in the matter as summon trial. He
submits that admittedly, there is a provision
in case of complaint submitted under
Section 138 of the N.I. Act that the
proceeding shall be carried out as per the
provisions of summary trial envisaged
under Section 262 to 265 of the Criminal
Procedure Code but here, the trial court has
passed the order dated 23rd of December
2021 invoking the provision of Section 256
of Cr.P.C. as the Section 143 of the N.I. Act
itself speaks like that. He submitted that
there is a proviso clause of Section 143 (1)
of the N.I. Act which says that provided
that when at the commencement of, or in
the course of, a summary trial in this
148 INDIAN LAW REPORTS ALLAHABAD SERIES
section, it appears to the Magistrate that the
nature of the case is such that sentence of
imprisonment for a term exceeding one
year may have to be passed or that it is, for
any other reason, undesirable to try the case
summarily, the Magistrate shall proceed in
a manner provided in this Code. Referring
the aforesaid, he submits that in fact in case
of non-appearance of the appellant, the trial
court has come to the conclusion to invoke
jurisdiction under Section 256 of the
Cr.P.C. and, as such, he has rightly
proceeded to pass the impugned order
dated 23rd of December 2021.

18. Having heard learned counsel for
the parties and after perusal of the record, I
find that there is a procedure prescribed
under Section 143 of the N.I. Act for
proceeding in the matter as a summary
trial. Further the argument, which has been
raised by the learned counsel for the State
that the Magistrate has invoked his
jurisdiction under Section 256 of the
Cr.P.C., is unsustainable as from proviso of
sub Clause 1 of Section 143 of the N.I. Act,
it is itself evident that the same can be
invoked. The trial court shall, after hearing
the parties, record an order to that effect
and, in such view, the Magistrate can
proceed under Section 256 of the Cr.P.C.
from summary trial to summon trial.

169 It is evident from the order
dated 23.12.2021 that neither the parties
were heard nor any reason was recorded by
the
Magistrate
while
dismissing
the
complaint filed by the appellant. Further
there seems to be no any provision which
enables the trial court to proceed in the
matter under Section 256 of the Cr.P.C.
Thus, the Additional Court has travelled
beyond its jurisdiction as it has invoked
provisions under Section 256 while passing
the order dated 23rd of December 2021.

20. This Court has also noticed the
conduct of the appellant and the respondent
no.2 wherein it is evident that the appellant
appeared on almost all the dates fixed by
the trial court whereas the respondent no.2
kept on deviating in appearance and on
several
occasions,
when
non-bailable
warrants were issued against him, he
appeared and thereafter again absented. It is
also evident from the order dated 23rd of
December 2021 that the respondent no.2
was also not present before the trial court
on the date fixed.

21. Considering the aforesaid facts
and circumstances and the law settled by
the Apex Court as well as the provision
envisaged under the N.I. Act as well as the
Cr.P.C., I am of the view that the learned
Additional Court while passing the order
dated 23rd of Decmeber 2021 has travelled
beyond its jurisdiction.

22. Thus, the appeal is allowed and
the Judgment and order dated 23rd of
December 2021 is hereby set aside.

23. The learned Trial Court is directed
to proceed accordingly.
----------
(2022)06ILR A148
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2022

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ C No. 1404 of 2022

Dr. Virendra Singh & Ors. ...Petitioners
Versus
Addl. City Magistrate Lko. & Ors.
 ...Respondents

Counsel for the Petitioners: