# M/s Kutumb Marketing Co. Prop. Firm & Anr v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 2 ILRA 1229
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-10
- **Case number:** Application u/s 482 No. 12138 of 2017
- **Bench:** Manoj Baja
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-kutumb-marketing-co-prop-firm-anr-v-state-of-u-p-anr-opp-parties-51329
- **Pages:** 4

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Negotiable Instruments Act, 1881-
Section 138 - Dishonour of cheque due to
insufficient funds or stop payment -
Section 482 CrPC not applicable for
quashing complaint based on disputed
facts - Accused must prove defence at
trial. (Para - 12,15,16)

Complainant rented office space to accused -
Accused issued cheque - dishonoured due to
"payment
stopped"
-
Complainant
issued
statutory notice - accused replied, claiming
payment of Rs. 20,000/- in cash. (Para - 1 to
3)

HELD: - Ground raised by accused-applicants
for quashing of impugned complaint was based
upon disputed facts. Instrument in question
carried a presumption that it was issued for
discharge of debt or other liability, therefore,
the applicants were required to rebut the same
by leading their defence evidence. No forgery
established in documents. Court declined to
exercise inherent powers under Section 482
Cr.P.C . (Para - 11 to 15)

Application u/s 482 Cr.P.C. dismissed. (E7)

## Text

2 All. M/s Kutumb Marketing Co. Prop. Firm & Anr. Vs. State of U.P. & Anr.
1229
Complaint Case No.39 of 2019: Kanchan
Devi Vs. Sachin Singh, arising out of Case
Crime No. 29 of 2018, under Section 376
I.P.C. and Section 3 (2) (v) of Scheduled
Castes
and
the
Scheduled
Tribes
(Prevention of Atrocities) Act, 1989, Police
Station Sammanpur, District Ambedkar
Nagar, pending in the Court of Special
Judge, SC/ST Act, Ambedkar Nagar are
hereby quashed.
----------
(2024) 2 ILRA 1229
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.01.2024

BEFORE

THE HON'BLE MANOJ BAJAJ, J.

Application u/s 482 No. 12138 of 2017

M/s Kutumb Marketing Co. Prop. Firm &
Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Uday Shankar Tiwari, Sri Rajiv Lochan
Shukla, Sri Siddharth Niranjan

Counsel for the Opp. Parties:
G.A., Sri Munna Pandey

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Negotiable Instruments Act, 1881-
Section 138 - Dishonour of cheque due to
insufficient funds or stop payment -
Section 482 CrPC not applicable for
quashing complaint based on disputed
facts - Accused must prove defence at
trial. (Para - 12,15,16)

Complainant rented office space to accused -
Accused issued cheque - dishonoured due to
"payment
stopped"
-
Complainant
issued
statutory notice - accused replied, claiming
payment of Rs. 20,000/- in cash. (Para - 1 to
3)

HELD: - Ground raised by accused-applicants
for quashing of impugned complaint was based
upon disputed facts. Instrument in question
carried a presumption that it was issued for
discharge of debt or other liability, therefore,
the applicants were required to rebut the same
by leading their defence evidence. No forgery
established in documents. Court declined to
exercise inherent powers under Section 482
Cr.P.C . (Para - 11 to 15)

Application u/s 482 Cr.P.C. dismissed. (E7)

(Delivered by Hon'ble Manoj Bajaj, J.)

1.
 Applicants
have
filed
this
application under Section 482 Code of
Criminal
Procedure
for
quashing
of
Complaint Case No. 3955 of 2015; titled
Vinay Kumar Mittal vs. M/s Kutumb
Marketing Company and another, filed by
complainant-opposite party no. 2, under
Section 138 Negotiable Instruments Act,
1881.

2. Briefly, the facts leading to the
application are that complainant-Vinay
Kumar Mittal brought a complaint under
Section 138 Negotiable Instruments Act,
1881 against M/s Kutumb Marketing
Company,
a
Proprietorship
Firm
represented by applicant no. 2 namely Smt.
Meetu wife of Paritosh Srivastava, with the
averments that the applicant no. 2 is
Proprietor of the applicant no. 1-Firm and
is responsible for the conduct of business of
the Firm, and the complainant has given a
office bearing No. 608 S.L. Tower, Alpha
Commercial Belt Greater Noida, District
Gautam Budh Nagar, to the accused on
rent. The accused never paid the rent in
time and for the last two years, there is no
rendition of the rent account, and whenever
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
the official of the complainant visits the
accused-Firm for demand of rent, he is
scolded, and seldom some rent is paid by
way of cheques, but the said cheques never
cleared on single presentation. On 7th
August, 2015, the accused issued a cheque
bearing No. 030102 for a sum of Rs.
20,000/-, drawn at Bank of Maharashtra
Branch S.L. Tower, Shop No. 3, Alpha-I,
Commercial Belt Greater Noida, District
Gautam Budh Nagar from account bearing
No. 60034507037, in favour of the
complainant to clear the debt of rent. The
said
cheque
was
presented
by
the
complainant with his bankers, namely,
Citizen Cooperative Bank Ltd., affiliated to
HDFC Bank for credit in his Saving
Account No. 2050, but the same was
returned dishonoured through memo dated
13.10.2015. As per the memo of the bank,
the cheque was returned with the remarks
"Payment Stopped" by the drawer. The
complainant issued a statutory notice dated
26.10.2015
through
Sri
Jabar
Singh
Advocate
by
registered
A.D.
dated
27.10.2015 and demanded the payment of
cheque amount within 15 days from the
date of the receipt of the notice, but neither
any payment was made nor any other
information was received from the accused.
The complainant filed a complaint against
the accused for alleged commission of
offence punishable under Section 138
Negotiable Instruments Act, 1881 and also
appended the copies of the original cheque
dated 7.8.2015, bank return memo, legal
notice dated 26.10.2015 and the photo copy
of the postal receipt dated 27.10.2015 along
with the affidavit.

3. Thereafter, the statement of the
complainant was recorded on 29.7.2016
under Section 202 Cr.P.C. by the Judicial
Magistrate, Gautam Budh Nagar and after
examining the material on record found
that prima facie the alleged commission of
offence punishable under Section 138
Negotiable Instruments Act, 1881 is made
out, and vide order dated 24.1.2017 process
against the applicants/accused was issued.
Feeling
aggrieved
against
this,
the
applicants have approached this Court by
way of this petition for quashing of the
criminal proceedings.

4. Learned counsel for the accused
has argued that the complainant has
concealed material facts in the impugned
complaint (Annexure-2) and did not
disclose that before the dishonour of
cheque in October, 2015, previously on two
occasions the cheque was presented by him
on 6.8.2015 and 19.8.2015 and on both
occasions it was dishonoured. Learned
counsel for the applicants has argued that
the cheque is dated 7th August, 2015, but
the complainant had presented it before his
bankers on 6th August, 2015 and when the
bankers of the accused deducted dishonour
charges of Rs. 171/- from their account, at
that stage, the applicants contacted the
complainant and issued another cheque
bearing no. 030103 for a sum of Rs.
20,000/-
and
the
said
amount
was
withdrawn by the employee of the
complainant, namely, Munna and receipt
(Annexure-17) in this regard was also
issued.

5. According to the learned counsel
for the applicants, since the liability, if any,
attached to the cheque no. 030102 stood
discharged to the satisfaction of the
complainant,
therefore,
the
impugned
complaint would not be maintainable. In
support of his arguments, learned counsel
has drawn the attention of the Court to the
pleadings contained in paragraph 11 of the
petition and the relevant annexures i.e. the
two cheques, Annexures 3 and 16,
2 All. M/s Kutumb Marketing Co. Prop. Firm & Anr. Vs. State of U.P. & Anr.
1231
respectively, and the receipt dated 18th
August, 2015 signed by Munna (Annexure
17).

6. Learned counsel has further argued
that the complainant has also not disclosed
in his complaint about the reply dated 5th
November, 2015 (Annexure 10) sent by the
applicants to the statutory notice dated
26.10.2015 (Annxure 7), wherein it is also
specifically highlighted that a sum of Rs.
20,000/- stood paid to Munna against the
liability of cheque bearing no. 030102 and
with this payment, the rent payable upto the
month of July, 2015 stood cleared. Sri
Rajiv Lochan Shukla, learned counsel for
the applicants has pointed out that the
averments contained in paragraph '11' of
the petition have not been specifically
denied by the opposite party no. 2 in their
counter
affidavit
dated
24.06.2017,
therefore, in this background, it is apparent
that the impugned complaint is based upon
the distorted facts and the same is nothing,
but an abuse of the process of law. He prays
that the impugned complaint be quashed.

7. Though the opposite party no. 2 has
filed the counter affidavit, but today no one
has appeared on behalf of the complainant.

8. Learned counsel for the applicants
has been heard and with his assistance, case
file has been perused carefully.

9. After hearing the learned counsel
for the applicants and considering his
submissions, this Court finds that as far as
the relationship of the accused and the
complainant as tenant and landlord is
concerned, the same is not disputed and
even the issuance of subject cheque dated
7th August, 2015 bearing No. 030102 for a
sum of Rs. 20,000/- in favour of the
landlord-complainant is also admitted. In
this regard, reference can be made to the
reply dated 5th November, 2015 allegedly
sent by the applicants to the complainant.
The applicants have mainly relied upon
their stand of having discharged the
liability attached to the cheque no. 030102
dated 7th August, 2015, as after its
dishonour, the said amount of Rs. 20,000/-,
was paid to the landlord through a bearer
cheque No. 030103, which was encashed
by one Munna allegedly an employee of the
landlord.

10. During the course of hearing, Sri Rajiv
Lochan Shukla, learned counsel for the
applicants vehemently argued that on 6th
August, 2015, the cheque bearing no.
030102 was presented which is a day
before the date contained on the cheque and
when the sum of Rs. 171/- for its dishonour
was deducted on 7.8.2015 by the bankers,
applicants came to learn about it and
contacted the landlord and also made the
payment of Rs. 20,000/- through bearer
cheque bearing no. 030103 on 18.8.2015.
Strangely, if the liability attached to the
cheque in question stood discharged as
claimed by the applicants, on 18.8.2015
then
why
the
cheque
was
again
dishonoured on 19th August, 2015 has not
been explained by the applicants, as the
complaint is founded upon the subsequent
dishonour of the same cheque in October,
2015. Notably, in the reply dated 5.11.2015
sent by the applicants to the complainant,
there is no mention either regarding
premature presentation of the cheque on
6th August, 2015 or any averment relating
to the alleged unjustified presentation of
the cheque on 19th August, 2015, i.e. after
payment of a sum of Rs. 20,000/- to the
complainant. Besides, no explanation has
been offered as to why at the time of
payment
of
Rs.
20,000/-
to
the
complainant, the return of the cheque was
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
not requested. Also the payment of the
cheque in question was stopped by
applicants much after the alleged payment
in cash to the complainant was made, and
concededly, no intimation in this regard
was sent to the applicants.

11. Apart from the above, a perusal of
the vernacular of the photo copy of the
receipt dated 7th August, 2015 (Annexure17) would show that it is issued by Munna,
and it also contains the shop number as 608
with an amount mentioned against it as Rs.
15,908/-
till
June,
2015.
Even
the
applicants have mentioned in paragraph 13
of the application that the sum of Rs.
15,908/- was also paid to the complainant
as maintenance charges, thus, the stand of
the applicants that a sum of Rs. 20,000/-
was paid against the cheque dated 7th
August, 2015 cannot be accepted for want
of evidence, particularly when in the
counter affidavit, the complainant has
specifically denied the receipt of cash
amount of Rs. 20,000/- as alleged by the
applicants.

12. Consequently, in view of the
above background, this Court has no
hesitation in holding that the ground raised
by the accused-applicants for quashing of
the impugned complaint are based upon
disputed facts, and as the instrument in
question carries a presumption that it was
issued for discharge of debt or other
liability, therefore, the applicants are
required to rebut the same by leading their
defence evidence.

13. At this stage, learned counsel for
the applicants has pointed out that the
applicants have also moved an application
under Section 340 Cr.P.C. against the
landlord-opposite party no. 2 for filing
forged letters at pages 11, 12 and 13 of the
counter affidavit, which are written by the
landlord to the applicant no. 2 relating to
the extension of lease agreement, and on
these letters, the signatures of the applicant
no. 2 with the stamp has been forged. The
document is being questioned only on the
ground that it contains the signature and
stamp of applicant no. 2 which is not
possible, but admittedly, there is no denial
of the contents and substance of these
letters, therefore, prima facie, it does not
seem to be a case of any forgery. Thus, no
interference is called for in the application
under Section 340 Cr.P.C. also.

14. No other argument has been
raised.

15. Resultantly, without meaning any
expression of opinion on the merits of this
case, this Court is not inclined to exercise
the inherent powers under Section 482
Cr.P.C and the application is hereby
dismissed.

16. However, it is made clear that it
shall be open for the applicants to lead
evidence before the trial court in support of
the defence raised herein.
----------
(2024) 2 ILRA 1232
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.02.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application u/s 482 No. 12798 of 2023

Shivam Kashyap ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel
for
the
Applicant: