# M/s Girnar Traders v. State of &

- **Citation:** (2008) 2 ILRA 426
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-03-27
- **Case number:** Criminal Misc. Application No. 3118 of 2008
- **Bench:** Amar Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-girnar-traders-v-state-of-41067
- **Pages:** 4

## Headnote

Negotiable Instrument Act Section 138
(A)-Complaint neither signed by the
Payee-but her power of attorney holdereven the statement u/s 200 and 202
recorded of the husband of payeesummoning order-set a side-with liberty
to the Magistrate to take appropriate
decision
after
examining
the
complainant.

Held: Para 7

The next submission, however, of the
applicant was that the complaint in the
present case was signed not by the
payee i.e. Smt. Urmila Devi, but by the
power of attorney holder Harsingh Pal
her husband. He has drawn my attention
to
section
142
of
the
Negotiable
Instruments Act, wherein it is mentioned
in clause (a) that no Court shall take
cognizance of any offence punishable
under
section
138
except
upon
a
complaint, in writing, made by the payee
or, as the case may be, the holder in due
2 All] Amit Yadav V. State of U.P. and another
427
course of the cheque. The holder in due
course has been defined under section 9
to
mean
any
person
who
for
consideration became the possessor of a
promissory note, bill of exchange or
cheque, if payable to the bearer or payee
or
the
payee
or
indorsee
thereof.
Therefore
there
is
force
in
the
submission of the learned counsel for the
applicant that the power of attorney
holder cannot be said to be either the
payee or the holder in due course.
Case law discussed:
2003 SCC (Cri) 1217, 2007 (2) JIC, 457 (All),
2007 (1) JIC, 907 (All)., (2007) 6 SCC, 555,
AIR 2007 (NOC) 944 (KAR.)

## Text

426 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
absolutely in the Government free from
all encumbrances. But this argument is
not acceptable because under Section
17(1) of the Act the possession was to be
taken after expiry of 15 days from the
date of publication of notice under
Section 9(1) of the Act showing urgency
but since the alleged possession was taken
much after two years of the dismissal of
the writ petition, therefore, this argument
of the learned counsel for the petitioners
has force that there was no urgency.

7. The learned counsel for the
petitioners has cited 2007 (5) Supreme 25
M/s Girnar Traders Vs. State of &
Others in which the three judges Bench of
the Apex Court has clearly held that if the
land is not acquired within the stipulated
period and award is not made within two
years from the date of declaration under
Section 6 the Act, the entire acquisition
proceedings come to an end. He has
further cited the case of Ravi Khullar and
another Vs. Union of India & Others
2007 (5) SCC 231 in which the Apex
Court has opined that the provisions of
Section 12 of the Limitation Act cannot
be read with Section 11A of the Act. Only
that period has to be excluded from the
stipulated time under Section 11A of the
Act for which the proceedings were
stayed by any competent Court. In the
case of Kunwar Pal Singh Vs. State of U.
P. and others 2007 (5) SCC 85 the same
view has been taken that if the award is
made after expiry of the limitation period
under Section 11A of the Act, the entire
acquisition proceedings would be lapsed.

8. In view of our above discussions,
we come to the conclusion that the entire
acquisition proceedings in this case have
lapsed in respect of plots in dispute and
consequently this writ petition is allowed
accordingly.

No order as to cost.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.03.2008

BEFORE
THE HON'BLE AMAR SARAN, J.

Criminal Misc. Application No. 3118 of
2008

Amit Yadav

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

Counsel for the Applicant:
Sri Shrawan Kumar Mishra

Counsel for the Respondents:
A.G.A.

Negotiable Instrument Act Section 138
(A)-Complaint neither signed by the
Payee-but her power of attorney holdereven the statement u/s 200 and 202
recorded of the husband of payeesummoning order-set a side-with liberty
to the Magistrate to take appropriate
decision
after
examining
the
complainant.

Held: Para 7

The next submission, however, of the
applicant was that the complaint in the
present case was signed not by the
payee i.e. Smt. Urmila Devi, but by the
power of attorney holder Harsingh Pal
her husband. He has drawn my attention
to
section
142
of
the
Negotiable
Instruments Act, wherein it is mentioned
in clause (a) that no Court shall take
cognizance of any offence punishable
under
section
138
except
upon
a
complaint, in writing, made by the payee
or, as the case may be, the holder in due
2 All] Amit Yadav V. State of U.P. and another
427
course of the cheque. The holder in due
course has been defined under section 9
to
mean
any
person
who
for
consideration became the possessor of a
promissory note, bill of exchange or
cheque, if payable to the bearer or payee
or
the
payee
or
indorsee
thereof.
Therefore
there
is
force
in
the
submission of the learned counsel for the
applicant that the power of attorney
holder cannot be said to be either the
payee or the holder in due course.
Case law discussed:
2003 SCC (Cri) 1217, 2007 (2) JIC, 457 (All),
2007 (1) JIC, 907 (All)., (2007) 6 SCC, 555,
AIR 2007 (NOC) 944 (KAR.)

(Delivered by Hon'ble Amar Saran. J.)

1. Heard learned counsel for the
applicant and the learned A.G.A.

2. This application has been filed for
quashing a summoning order dated
27.7.2007 passed by the Additional Chief
Judicial Magistrate, Court No.1, Aligarh
in Complaint Case No. 441 of 2007.

3. The first submission of the
learned counsel for the applicant was that
in the complaint no date of service of
notice was mentioned and the same is in
contravention of the decision of the Apex
Court in Shakti Travel and Tours versus
State of Bihar and another, 2003 SCC
(Cri) 1217 and two decisions of this Court
in Ravindra Singh Gugyani @ Sanju
Versus State of U.P. & others, 2007 (2)
JIC, 457 (All) and Deepak Kumar &
another Versus State of U.P. & another,
2007 (1) JIC, 907 (All). It may be noted
that it has been clearly mentioned in the
judgement of the Apex Court that in the
assertion of the complaint, there is no
averment that the notice has been served,
but the said case did not require that the
date of service be mentioned. In the
decision in Ravindra Singh Gugyani @
Sanju's case again there was no assertion
that the notice was served and on this
ground relying on the decision of Shakti
Travels and Tours, Hon'ble R.K. Rastogi,
J., issued notice only. In the decision of
Deepak Kumar and. Another passed by
Hon'ble Vinod Prasad, J., it has been
clarified that the notice had been sent by
courier and it had not been sent by
registered post.

4. In the present case the allegation
in paragraph No.8 of the complaint was
that the notice had been sent by the
complainant's wife, who was the payee
and aggrieved person by registered post
on 19.2.2007 and in paragraph No. 9, it
was further submitted that the notice had
been received by the accused, but he has
not given any reply and the registry had
not been returned. It may be useful here to
quote section 27 of the General Clauses
Act.

5. Meaning of Service by post.--
Where any (Central Act) or Regulation
made after the commencement of this Act
authorizes or requires any document to be
served by post whether the expressions
"give" or "send" or :any other expression
is used, then, unless a different intention
appears, the service shall be deemed to be
effected by properly addressing, prepaying and posting by registered post, a
letter containing the document, and unless
the contrary is proved, to have been
effected at the time at which the letter
would be delivered in the ordinary course
of post."

6. The said provision clearly points
out that where any letter properly
addressed to the recipient is sent and
posted by registered post, then unless the
428 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
contrary is proved, it shall be deemed that
the notice shall have reached the recipient
in the ordinary course of post. However,
the drawer can rebut the presumption
during trial that he was not served the
letter or the address was wrong. This is
also the view taken by the Apex Court in
the very recent decision of C.C. Alvi Haji
Versus Palajetty Muhammad & another,
(2007) 6 SCC, 555. There is, therefore, no
force in this contention of the learned
counsel for the applicant.

7. The next submission, however, of
the applicant was that the complaint in the
present case was signed not by the payee
i.e. Smt. Urmila Devi, but by the power of
attorney holder Harsingh Pal her husband.
He has drawn my attention to section 142
of the Negotiable Instruments Act,
wherein it is mentioned in clause (a) that
no Court shall take cognizance of any
offence punishable under section 138
except upon a complaint, in writing, made
by the payee or, as the case may be, the
holder in due course of the cheque. The
holder in due course has been defined
under section 9 to mean any person who
for consideration became the possessor of
a promissory note, bill of exchange or
cheque, if payable to the bearer or payee
or
the
payee
or
indorsee
thereof.
Therefore there is force in the submission
of the learned counsel for the applicant
that the power of attorney holder cannot
be said to be either the payee or the holder
in due course.

8. Learned counsel for the applicant
has also drawn my attention to the
decision of the Kerala High Court
Ranjitha Balasubramanian and another
vs. Shanti Group and others, AIR 2007
(NOC) 944 (KAR.), which mentions that
if the complaint has not been filed or
proceeded with by the proper person, the
complaint is liable to be dismissed
although a complaint may then be filed by
the appropriate person and the Court may
consider extending the time for filing the
complaint.

9. In the present case, admittedly the
opposite party No.2 Harsingh Pal is the
husband and power of attorney holder of
Smt. Urmila Devi, who has signed the
complaint and also given a statement
under section 200 Cr.P.C. and thereafter
one Suraj Pal was examined under section
202 Cr.P.C., and then the impugned
summoning order was passed. 8mt.
Urmila Devi has neither signed the
complaint nor examined herself under
section 200 Cr.P.C.

10. Learned A.G.A. submits that no
useful purpose would be served in issuing
notice to the opposite party No. 2 and
keeping the proceedings pending in this
Court.

11. In this view of the matter, I
deem it proper to set aside the summoning
order dated 27.7.2007, provided the
applicant files a copy of this order before
the Court concerned within three weeks.
Thereafter, the learned Trial Court will
summon the actual aggrieved person viz.
Urmila Devi and pass appropriate orders
after examining her under section 200
Cr.P.C. if possible within four weeks. As
it appears that the complaint was signed
by the power of attorney, who also
examined himself under section 200
Cr.P.C. on improper legal advice it would
be appropriate for the Court concerned to
consider this circumstance for extending
the time for filing the complaint under the
proviso to clause (b) of section 142 of the
Act.
2 All] Smt. Asha Kapoor V. Addl. Collector, Ghaziabad and others
429
12. With these observations, this
application is disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2008

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No.14481 of 2008

Smt. Asha Kapoor

...Petitioner
Versus
Addl. Collector, Ghaziabad and others

...Respondents

Counsel for the Petitioner:
Sri V. Singh
Sri K.K. Pandey

Counsel for the Respondents:
S.C.

Indian Stamp Act 1899-Section 56 (1-A)-
Penalty-In
insufficient
of
stamp-No
guide
line
regarding
imposition
of
penalty-government to frame proper
rule-so
long
the
allegation
of
concealment of valuation of property-or
specific finding recorded-penalty can not
be imposed.

Held: Para 7

The penalty can be imposed, if there is
an attempt to evade the stamp duty. The
penalty presupposes culpability and an
intention to conceal or to play fraud with
the authorities. Whereas there is any
reasonable
doubt
with
regard
to
valuation of the property, and nothing
material is found to have been concealed
by the petitioner in execution of the
document, the authorities will loose their
discretion
to
impose
penalty.
The
enhancement of the valuation on the
basis of the finding that the property has
a
potential
user
as
residential
or
industrial purposes, is subject to appeal.
Before imposing penalty, the authorities
must record findings based on relevant
material that the purchaser or the
person liable to pay stamp duty had
concealed the relevant facts in execution
of sale deed, and had intension to evade
the payment of stamp duty. These
powers cannot be mechanically used in
every case.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard learned counsel for the
petitioner and learned standing counsel
for all the respondents. With the consent
of parties, the matter was heard and is
finally disposed of at the admission stage.

2. The petitioner preferred an appeal
No. 53 of 2007-08 against an order dated
10.12.2007 passed by the Additional
Collector
(Finance
&
Revenue)
Ghaziabad, by which in a Stamp Case No.
426/2006-07 under Section 47 A of Indian
Stamp Act in respect of sale of Khasra
No. 2049 Gha area 0.0942 hectares situate
in village & Pargana Dasna, District
Ghaziabad
by
document
No.
8223/9.10.2006, it was found that the
market value of the property was much
higher and while assessing the market
value at the residential rates the petitioner
was required to pay Rs.1,36,900/- as
deficiency in stamp duty and Rs.73,100/-
as penalty (total Rs. 2 lacs) with 1.5%
interest per month. The Commissioner,
Meerut Division, Meerut has, by his order
dated 16.1.2008, while admitting the
appeal and summoning the records,
directed the petitioner to deposit one-half
of the disputed amount as a precondition
for stay for a period of two months.

3. It is contended that the condition
of deposit is highly onerous and that the
order was not considered on merit before