# M/S Neel Jewels Gorakhpur & Anr. Revisionists v. State of U.P. & Anr

- **Citation:** (2022) 2 ILRA 701
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-01
- **Case number:** Criminal Revision No. 62 of 2022
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-neel-jewels-gorakhpur-anr-revisionists-v-state-of-u-p-anr-48150
- **Pages:** 9

## Headnote

Law-The
Negotiable
Instruments Act, 1881- Section 138-
Application for Discharge- No provision in
law- Maintainability- As by means of the
aforesaid order, this Court had merely
granted a liberty to the revisionists to
move an application and the application
was directed to be decided in accordance
with the law, which includes the law
regarding its maintainability. Therefore,
the
learned
Court
below
has
not
702 INDIAN LAW REPORTS ALLAHABAD SERIES
committed any illegality in examining the
maintainability of the application. As has
already been noted above, the application
does not mention the provision of law
under
which
it
has
been
moved
presumably because there is no such
provision.

As there is no provision for filing an application
for discharge under the Negotiable Instruments
Act, hence the same was rightly rejected by the
court below as being not maintainable.

(B)
The
Negotiable
Instruments
Act,
1881- Section 258- Recall of process -
Once the Court issues process to the
accused/opposite party on a complaint
under Section 138 of the Act, there is no
provision for recall of the process. The
only
provision
for
stopping
the
proceedings in a certain cases is given in
Section 258 Cr.P.C- The conclusion of the
learned Court below that it has no
jurisdiction to recall or review the order
passed by itself summoning the accused
does not suffer from any legal infirmity
and needs no interference by this Court in
exercise of its revisional power under
Section 397/401 Cr.P.C.

Settled law that the magistrate cannot review or
recall his own order even with the aid of Section
258 of the CrPc as the same is not applicable in
proceedings under the Negotiable Instruments
Act.

(C) The Negotiable Instruments Act,
1881- Section 141- The revisionist no. 1
is
a
proprietorship
firm
and
the
revisionist no. 2 is its proprietor and this
fact has not been disputed by the
revisionists. It is nobody's case that the
revisionist
no.
1
is
a
company
incorporated under the provisions of the
Companies Act or a registered firm- A
proprietorship concern is not a juristic
person. It is merely a trade name used
by a person for doing his business. A
person may carry on a business in the
name of the proprietorship concern but
he being the proprietor of the business,
would be solely responsible for all the
actions
and
liabilities
of
the
proprietorship concerned. It is correct
that the provisions of Section 141 of the
Act have no bearing to the present case
where the revisionist no. 1 is not a
company. The revisionist No. 2 being the
proprietor of the revisionist No. 1 is
solely responsible for all its action and
liability including the liability to face
prosecution under Section 138 of the Act
for dishonour of a cheque, which was
drawn by the revisionist No. 2 himself.

A proprietorship firm is not a juristic person
and recourse to Section 141 of the Act is
therefore impermissible. Hence, the proprietor
of the firm shall be solely

## Text

2 All. M/S Neel Jewels Gorakhpur & Anr. Vs. State of U.P. & Anr.
701
he was asked about this improvement, PW1 stated that what he had stated earlier, on
04.06.2001, is what the Court Sahab had
advised him to state. This renders his
testimony not wholly reliable and shakes
our confidence in his deposition and when
we look at it from another angle, that is, he
has not been found truthful with regard to
the deceased being alive and rushed to the
hospital for treatment, various questions
arise in our mind, that is, whether he really
witnessed the incident or he also arrived at
the spot, like others, when the gun shot was
heard; and whether the FIR and the
prosecution story is contrived, based on
guess-work, or suspicion, or ill-motive. Be
that as it may, the upshot of the discussion
is that the testimony of PW-1 having not
been found truthful on a material particular
and inconsistent as well, in the sense that it
improves upon the earlier statement, in
respect of the manner in which the incident
occurred, it is not wholly reliable and this
by itself is sufficient to extend the benefit
of doubt to the accused-appellant. More so,
when the prosecution case is based on
testimony of a solitary eye witness, who
has himself not suffered any injury, and the
testimony does not find corroboration from
other independent evidence. At this stage,
we may notice that though the prosecution
had also examined PW-4 as a witness who
saw the accused running away from the
spot, but this deposition of his is at variance
with his statement under section 161 CrPC
where he did not state having seen the
accused running away. We, therefore, do
not propose to rely on the testimony of
PW-4 to lend credence to what PW-1
deposed.

26. For all the reasons stated above,
we are of the considered view that the
prosecution has failed to prove its case
beyond the pale of doubt and, therefore, the
appellant is entitled to the benefit of doubt.
Consequently, the appeal is allowed. The
judgment and order of conviction and
sentence recorded by the trial court is set
aside. The appellant is acquitted of the
charge for which he has been tried and
convicted. The appellant shall be released
from jail forthwith, unless wanted in any
other case, subject to compliance of the
provisions of Section 437-A Cr.P.C. to the
satisfaction of the trial court.

27. Let a copy of this order be
certified to the court below along with the
record for information and compliance.
----------
(2022)02ILR A701
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.02.2022

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Revision No. 62 of 2022

M/S Neel Jewels Gorakhpur & Anr.
 ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Baljeet Singh, Suneel Kumar

Counsel for the Opposite Parties:
G.A.

(A)
Criminal
Law-The
Negotiable
Instruments Act, 1881- Section 138-
Application for Discharge- No provision in
law- Maintainability- As by means of the
aforesaid order, this Court had merely
granted a liberty to the revisionists to
move an application and the application
was directed to be decided in accordance
with the law, which includes the law
regarding its maintainability. Therefore,
the
learned
Court
below
has
not
702 INDIAN LAW REPORTS ALLAHABAD SERIES
committed any illegality in examining the
maintainability of the application. As has
already been noted above, the application
does not mention the provision of law
under
which
it
has
been
moved
presumably because there is no such
provision.

As there is no provision for filing an application
for discharge under the Negotiable Instruments
Act, hence the same was rightly rejected by the
court below as being not maintainable.

(B)
The
Negotiable
Instruments
Act,
1881- Section 258- Recall of process -
Once the Court issues process to the
accused/opposite party on a complaint
under Section 138 of the Act, there is no
provision for recall of the process. The
only
provision
for
stopping
the
proceedings in a certain cases is given in
Section 258 Cr.P.C- The conclusion of the
learned Court below that it has no
jurisdiction to recall or review the order
passed by itself summoning the accused
does not suffer from any legal infirmity
and needs no interference by this Court in
exercise of its revisional power under
Section 397/401 Cr.P.C.

Settled law that the magistrate cannot review or
recall his own order even with the aid of Section
258 of the CrPc as the same is not applicable in
proceedings under the Negotiable Instruments
Act.

(C) The Negotiable Instruments Act,
1881- Section 141- The revisionist no. 1
is
a
proprietorship
firm
and
the
revisionist no. 2 is its proprietor and this
fact has not been disputed by the
revisionists. It is nobody's case that the
revisionist
no.
1
is
a
company
incorporated under the provisions of the
Companies Act or a registered firm- A
proprietorship concern is not a juristic
person. It is merely a trade name used
by a person for doing his business. A
person may carry on a business in the
name of the proprietorship concern but
he being the proprietor of the business,
would be solely responsible for all the
actions
and
liabilities
of
the
proprietorship concerned. It is correct
that the provisions of Section 141 of the
Act have no bearing to the present case
where the revisionist no. 1 is not a
company. The revisionist No. 2 being the
proprietor of the revisionist No. 1 is
solely responsible for all its action and
liability including the liability to face
prosecution under Section 138 of the Act
for dishonour of a cheque, which was
drawn by the revisionist No. 2 himself.

A proprietorship firm is not a juristic person
and recourse to Section 141 of the Act is
therefore impermissible. Hence, the proprietor
of the firm shall be solely responsible for all
activities and liabilities of his firm including
prosecution under the Negotiable Instruments
Act.

(D) Code of Criminal Procedure, 1973-
The Negotiable Instruments Act, 1881-
Section 202 (2) Applicability of- Section
202(2)
of
the
Code in
respect
of
examination of witnesses on oath is not
applicable to the complaints filed under
Section 138 of the Act. The evidence of
witnesses on behalf of the complainant
shall be permitted on affidavit. As the
Magistrate has taken into consideration
the
complainant's
affidavit
and
the
documentary evidence on record, he has
complied with the mandate of Section
202 Cr.P.c.

There is no requirement of law to record
the statement of the witnesses u/s 202(2)
of the CrPc in proceedings under the
Negotiable
Instruments
Act
and

its
sufficient for the Magistrate to take into
consideration
only
the
affidavit
and
documentary
evidence
filed
by
the
complainant.

Criminal Revision rejected. (E-3)

Judgements/ Case law relied upon:-

1. Raghu Lakshminarayan Vs Fine Tubes;
(2007) 5 SCC 103

2. Adalat Prasad Vs Rooplal Jindal & ors; (2004)
7 SCC 338
2 All. M/S Neel Jewels Gorakhpur & Anr. Vs. State of U.P. & Anr.
703
3. In Re: Expeditious Trial of Cases U/S 138 of
N.I. Act 1881; 2021 SCC OnLine SC 325

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Mr. Baljeet Singh Advocate,
learned counsel for the revisionists as well
as learned AGA for the State and perused
the record.

2. By means of the instant Criminal
Revision under Section 397/401 of the
Code of Criminal Procedure, 1973, the
revisionists have challenged the validity of
the order dated 18.10.2021 passed by the
Presiding Officer, Additional Court No. 2,
Lucknow in Complaint Case No. 6823 of
2019 (M/s Seven Seas Net Mart Sales Pvt.
Ltd. vs. M/s Neel Jewellers and another)
under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred
to as ''the Act') rejecting the application
filed
by
the
revisionists
for
being
exonerated of the liabilities/obligations
mentioned in the complaint.

3. The facts of the case, briefly stated,
are that on 19.08.2019 the opposite party
no. 2-complainant filed a complaint under
Section 138 of the Act inter alia stating that
the revisionist no. 1 is a proprietorship firm
in the proprietorship of the revisionist no.
2, who is a regular customer of the
complainant company. During the course of
business, the revisionist no. 1 took supply
of some items from the complainant and to
pay the price of the goods it issued some
cheques. A cheque bearing no. 044778
dated 06.06.2019 drawn on Allahabad
Bank, City Office Branch, Gorakhpur for
Rs. 3,00,000/- only, which was signed by
the revisionist no. 2 was dishonored with
the endorsement "payment stopped by the
drawer". It is stated in the complaint that
the action of the revisionists is punishable
under Section 138 read with Section 141 of
the Act and the revisionist no. 2, the
proprietor of the revisionist no. 1 was
responsible for conducting the business of
the proprietorship firm at the relevant time
when the aforesaid offence was committed.

4. The learned Additional Chief
Judicial
Magistrate,
VIIIth,
Lucknow
recorded the statement of the complainant
under Section 200 Cr.P.C. in the form of an
affidavit
dated
19.08.2019.
The
complainant gave his statement under
Section 200 Cr.P.C. through his affidavit
dated 19.08.2019 and he adduced the
original cheque in question, the memo
issued by the Bank, a copy of the registered
notice and the postal receipt as evidence
under Section 202 Cr.P.C.. After taking into
consideration the aforesaid material, the
learned Court below has come to the
conclusion that from the material/evidence
available on the record, an offence under
Section 138 of the Act is made out against
the accused persons/revisionists and has
passed an order summoning the revisionists
for being tried for the aforesaid offence.

5. After passing of the aforesaid order,
the revisionist approached this Court by
filing an Application under Section 482
Cr.P.C. No. 1901 of 2021 and after arguing
the matter at some length, the learned
counsel for the applicants (revisionists)
submitted that he did not want to press the
aforesaid application under Section 482
Cr.P.C. on merits and he confined his
prayer only to the extent that the applicants
be
permitted
to
move
a
discharge
application through counsel and suitable
directions may be issued for expeditious
disposal of the same.

6. The aforesaid application No. 1901
of 2021 was accordingly disposed of vide
704 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 22.06.2021 providing that the
applicants may move their discharge
application through counsel and the same
shall be heard and decided, expeditiously,
after hearing the parties, in accordance with
law, by means of a reasoned and speaking
order.

7. Thereafter, the revisionists filed an
application before the learned Court below
for being exonerated of the liabilities under
the complaint, without mentioning the
provision
of
law
under
which
the
application was filed.

8. The learned counsel for the
revisionists has submitted that in the
aforesaid application it was mentioned that
''in para 11 of the complaint a prayer has
been made to punish the revisionists under
Section 141 of the Negotiable Instruments
Act, 1881' and that the revisionist no. 1 is
neither a company registered under the
Companies Act nor is it a firm and,
therefore, Section 141 of the Act does not
apply to the revisionist no. 1. He submitted
that for this reason the complaint is not
maintainable and the revisionists ought to
be exonerated of the liabilities under the
complaint.

9. The opposite party no. 2 filed
objections against the aforesaid application
inter alia stating that the complaint under
Section 138 of the Act has to be decided by
the Court through a summary trial. There is
no provision in law for filing of a discharge
application during a summary trial. Besides
this, Section 258 Cr.P.C. also does not
apply to cases arising out of a complaint.
On this ground, the application filed by the
revisionists is not maintainable and is liable
to be dismissed. It was further stated in the
objections that the Trial Court does not
have the jurisdiction to recall or review the
order passed by itself and it has no power
to recall or review an order passed by it
summoning the accused-persons.

10. After hearing the aforesaid
application of the revisionists and the
objections against it filed by the opposite
party no. 2, the learned Court below
proceeded to pass the impugned order
dated 18.10.2021 whereby the revisionists'
application was rejected.

11. Dealing with the objection of the
revisionists
regarding
mentioning
of
Section 141 of the Act, the learned Court
below has stated that in the entire
complaint, the revisionist no. 1 has been
referred to as a proprietorship firm and the
revisionist no. 2 as its proprietor. Mere
mention of Section 141 of the Act in the
complaint, for whatever reason, may not
lead to a conclusion at this stage that the
complaint is not maintainable.

12.

Dealing
with
the
second
submission
made
on
behalf
of
the
revisionists during oral submissions, that
no
evidence
has
been
led
by
the
complainant under Section 202 Cr.P.C., the
learned Court below has held that the
documents adduced by the complainant can
be taken into consideration under Section
202 Cr.P.C. The learned Court below has
referred to the decision of the Hon'ble
Supreme Court in the case of In Re:
Expeditious Trial of Cases Under Section
138 of N.I. Act 1881; 2021 SCC OnLine
SC 325 in which it has been held that there
is no inherent power of Trial Courts to
review or recall the issue of summons.

13. Mr. Baljeet Singh, learned counsel
for the revisionists has assailed the validity
of the aforesaid order dated 18.10.2021
mainly on the ground that the application
2 All. M/S Neel Jewels Gorakhpur & Anr. Vs. State of U.P. & Anr.
705
for discharge had been filed by the
revisionist on the direction of this Court
vide order dated 22.06.2021, which has
wrongly been rejected by the learned Court
below as not maintainable.

14. The second submissions advanced
by the learned counsel for the revisionists is
that under Section 141 of the Act, action
can only be taken against a company
whereas the revisionist no. 1 is a
proprietorship firm and not a company and,
therefore, it cannot be proceeded with
under Section 141 of the Act.

15. It has also been submitted that the
learned Court below has summoned the
revisionists without recording the statement
of the opposite party no. 2 under Section
202 Cr.P.C. and the said fact has not been
considered by the learned Trial Court while
rejecting the discharge application.

16. The learned AGA has opposed the
revision and submitted that there is no
illegality or infirmity in the impugned
order.

17. I have considered the submissions
made by the parties' counsel and gone
through the record.

18. The submission of the learned
counsel for the revisionists, that the
application for discharge was filed on the
direction issued by this Court in the order
dated 22.02.2021 passed in Application
under Section 482 Cr.P.C. No. 1901 of
2021, is apparently wrong, as by means of
the aforesaid order, this Court had merely
granted a liberty to the revisionists to move
an application and the application was
directed to be decided in accordance with
the law, which includes the law regarding
its maintainability. Therefore, the learned
Court below has not committed any
illegality in examining the maintainability
of the application.

19. As has already been noted above,
the application does not mention the
provision of law under which it has been
moved presumably because there is no such
provision.

20 . In Adalat Prasad vs. Rooplal
Jindal & others; (2004) 7 SCC 338, the
Hon'ble Supreme Court was pleased to
declare the law in the following words: -

"But after taking cognizance of
the
complaint
and
examining
the
complainant and the witnesses if he is
satisfied that there is sufficient ground to
proceed with the complaint he can issue
process by way of summons under section
204 of the Code. Therefore what is
necessary or a condition precedent for
issuing process under section 204 is the
satisfaction of the Magistrate either by
examination of the complainant and the
witnesses or by the inquiry contemplated
under section 202 that there is sufficient
ground for proceeding with the complaint
hence issue the process under section 204
of the Code. In none of these stages the
Code has provided for hearing the
summoned accused, for obvious reasons
because this is only a preliminary stage and
the stage of hearing of the accused would
only arise at a subsequent stage provided
for in the latter provision in the Code. It is
true as held by this Court in Mathew's case
before issuance of summons the Magistrate
should be satisfied that there is sufficient
ground for proceeding with the complaint
but that satisfaction is to be arrived at by
the
inquiry
conducted
by
him
as
contemplated under sections 200 and 202,
and the only stage of dismissal of the
706 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint arises under section 203 of the
Code at which stage the accused has no
role to play therefore the question of the
accused
on
receipt
of
summons
approaching the court and making an
application for dismissal of the complaint
under section 203 of the Code for a
reconsideration of the material available
on record is impermissible because by then
Section 203 is already over and the
Magistrate has proceeded further to
Section 204 stage."

21. The aforesaid law laid down in
Adalat Pasad (supra) has been followed
and reiterated by the Hon'ble Supreme
Court in its subsequent decisions in Bholu
Ram vs. State of Punjab; (2008) 9 SCC
140, Subramanium Sethuraman vs. State
of Maharashtra (2004) 13 SCC 324, N.K.
Sharma vs. Abhimanyu (2005) 13 SCC
213, Everest Advertising (P) Ltd. Vs. State
(Govt. of NCT of Delhi) (2007) 5 SCC 54
and Irish Computers Ltd. vs. Askari
Infotech (P) Ltd.; (2015) 14 SCC 399.

22. Once the Court issues process to
the accused/opposite party on a complaint
under Section 138 of the Act, there is no
provision for recall of the process. The only
provision for stopping the proceedings in a
certain cases is given in Section 258
Cr.P.C., which provides as follows:-

"258. Power to stop proceedings
in certain cases. In any summons- case
instituted otherwise than upon complaint, a
Magistrate of the first class or, with the
previous sanction of the Chief Judicial
Magistrate, any other Judicial Magistrate,
may, for reasons to be recorded by him,
stop the proceedings at any stage without
pronouncing any judgment and where such
stoppage of proceedings is made after the
evidence of the principal witnesses has
been recorded, pronounce a judgment of
acquittal, and in any other case, release the
accused, and such release shall have the
effect of discharge."

23. In In Re: Expeditious Trial of
Cases Under Section 138 of N.I. Act 1881
(supra), the Hon'ble Supreme Court has
held that Section 258 cannot come into play
in respect of the complaint filed under
Section 138 of the Act. Affirming the
earlier decisions in the Adalat Prasad
(supra), the Hon'ble Supreme Court held
that the Trial Court cannot be conferred
with inherent power either to review or
recall the order of issuance of process.
Therefore, keeping in view the law laid
down by the Hon'ble Supreme Court, the
conclusion of the learned Court below that
it has no jurisdiction to recall or review the
order passed by itself summoning the
accused does not suffer from any legal
infirmity and needs no interference by this
Court in exercise of its revisional power
under Section 397/401 Cr.P.C.

24. Now I come to the second
submission of the learned counsel for the
revisionists seeking discharge on the
ground that the complaint makes a mention
of Section 141 of the Act, which does not
apply because revisionist No. 1 is a
proprietorship concern. Section 141 of the
Act provides as follows:

"141 Offences by companies. --
(1) If the person committing an offence
under section 138 is a company, every
person who, at the time the offence was
committed, was in charge of, and was
responsible to the company for the conduct
of the business of the company, as well as
the company, shall be deemed to be guilty
of the offence and shall be liable to be
proceeded
against
and
punished
2 All. M/S Neel Jewels Gorakhpur & Anr. Vs. State of U.P. & Anr.
707
accordingly:
Provided
that
nothing
contained in this sub-section shall render
any person liable to punishment if he
proves that the offence was committed
without his knowledge, or that he had
exercised all due diligence to prevent the
commission of such offence:

[Provided further that where a
person is nominated as a Director of a
company by virtue of his holding any office
or employment in the Central Government
or State Government or a financial
corporation owned or controlled by the
Central
Government
or
the
State
Government, as the case may be, he shall
not be liable for prosecution under this
Chapter.]

(2)
Notwithstanding
anything
contained in sub-section (1), where any
offence under this Act has been committed
by a company and it is proved that the
offence has been committed with the
consent or connivance of, or is attributable
to, any neglect on the part of, any director,
manager, secretary or other officer of the
company, such director, manager, secretary
or other officer shall also be deemed to be
guilty of that offence and shall be liable to
be
proceeded
against
and
punished
accordingly.

Explanation.-- For the purposes
of this section,--

(a) "company" means any body
corporate and includes a firm or other
association of individuals; and

(b) "director", in relation to a
firm, means a partner in the firm."

25. It is specifically pleaded in the
complaint that the revisionist no. 1 is a
proprietorship firm and the revisionist no. 2
is its proprietor and this fact has not been
disputed by the revisionists. It is nobody's
case that the revisionist no. 1 is a company
incorporated under the provisions of the
Companies Act or a registered firm.

26. A proprietorship concern is not a
juristic person. It is merely a trade name
used by a person for doing his business. A
person may carry on a business in the name
of the proprietorship concern but he being
the proprietor of the business, would be
solely responsible for all the actions and
liabilities of the proprietorship concerned.
It is correct that the provisions of Section
141 of the Act have no bearing to the
present case where the revisionist no. 1 is
not a company.

27. The stand taken by the revisionists
in the application for discharge is that in
para 11 of the complaint, a prayer has been
made to punish the revisionists under
Section 141 of the Act. No punishment is
prescribed under Section 141 of the Act
which has been reproduced above and the
revisionists have not been summoned for
being punished under Section 138 of the
Act only and not under Section 141.

28. So far as the legal position of the
revisionist no. 1 as proprietorship firm is
concerned, the following pronouncements
of the Hon'ble Supreme Court in Raghu
Lakshminarayan vs. Fine Tubes; (2007) 5
SCC 103 throws light on the subject. The
relevant observation of the Court is
reproduced below: -

"The description of the accused in
the complaint petition is absolutely vague.
A juristic person can be a Company within
the meaning of the provisions of the
Companies Act, 1956 or a partnership
708 INDIAN LAW REPORTS ALLAHABAD SERIES
within the meaning of the provisions of the
Indian Partnership Act, 1932 or an
association of persons which ordinarily
would mean a body of persons which is not
incorporated
under
any
statute.
A
proprietary
concern,
however,
stands
absolutely on a different footing. A person
may carry on business in the name of a
business concern, but he being proprietor
thereof, would be solely responsible for
conduct of its affairs. A proprietary
concern is not a Company. Company in
terms of the explanation appended to
Section 141 of the Negotiable Instruments
Act, means any body- corporate and
includes a firm or other association of
individuals. Director has been defined to
mean in relation to a firm, a partner in the
firm. Thus, whereas in relation to a
Company, incorporated and registered
under the Companies Act, 1956 or any
other statute, a person as a Director must
come within the purview of the said
description, so far as a firm is concerned,
the same would carry the same meaning as
contained in the Indian Partnership Act."

29. In view of the aforesaid
discussions, as the revisionist no. 1-M/S
Neel Jewelers Gorakhpur-a proprietorship
firm, is not a legal entity. No legal
proceedings can be initiated by or against it
and this principle of law would apply even
for filing of the instant revision by the
revisionist no. 1. However, the revisionist
no. 2, proprietor of the revisionist no. 1, has
also been arrayed as a party in the
compliant and he has been summoned for
being tried for committing an offence under
Section 138 of the Act by the learned Court
below. The revisionist No. 2 being the
proprietor of the revisionist No. 1, is solely
responsible for all its action and liability
including the liability to face prosecution
under Section 138 of the Act for dishonour
of a cheque, which was drawn by the
revisionist No. 2 himself.

30. So far as the last submission of
the learned counsel for the revisionists that
the learned Trial Court had committed a
legal error in proceeding to summon the
accused-persons without recording the
statement of the complaint under Section
202 Cr.P.C. is concerned, the same also
does not appear to have any force. Before
issuing
the
summoning
order
dated
25.11.2019, the learned Court below has
taken into consideration the affidavit of the
complainant filed in support of the
complaint under Section 200 Cr.P.C. and
the documentary evidence filed by the
complaint i.e., the original cheque in
question, the memo issued by the Bank, a
copy of the registered notice and the postal
receipt, as evidence under Section 202
Cr.P.C. Sub Section (2) of Section 202
Cr.P.C. is not applicable to the proceedings
of a complaint under Section 138 of the
Act.

31. Section 145 of the Negotiable
Instruments Act, 1881 provides as follows:
-

"145. Evidence on affidavit.-- (1)
Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of
1974), the evidence of the complainant may
be given by him on affidavit and may,
subject to all just exceptions be read in
evidence in any enquiry, trial or other
proceeding under the said Code.

(2) The Court may, if it thinks
fit, and shall, on the application of the
prosecution or the accused, summon and
examine any person giving evidence on
affidavit as to the facts contained
therein."
2 All. Mohammad Sadik Vs. State of U.P. & Ors.
709

32. In In Re: Expeditious Trial of
Cases Under Section 138 of N.I. Act 1881
(supra), the Hon'ble Supreme Court has
been pleased to hold that Section 202 (2) of
the Code in respect of examination of
witnesses on oath is not applicable to the
complaints filed under Section 138 of the
Act. The evidence of witnesses on behalf of
the complainant shall be permitted on
affidavit. If the Magistrate holds an inquiry
himself, it is not compulsory that he should
examine the witnesses. In suitable cases,
the Magistrate can examine documents for
satisfaction as to the sufficiency of grounds
for proceeding under Section 202 Cr.P.C.
As
the
Magistrate
has
taken
into
consideration the complainant's affidavit
and the documentary evidence on record,
he has complied with the mandate of
Section
202
Cr.P.c.
Therefore,
the
submission of the learned counsel for the
revisionists regarding non-compliance of
Section 202 Cr.P.C. is also without any
force and is hereby rejected.

33. In view of the aforesaid reasons,
this Court does not find any illegality in the
impugned order dated 18.10.2021 passed
by the learned Court below in Complaint
Case No. 6823 of 2019.

34. Accordingly, the instant Criminal
Revision lacks merits and is hereby
dismissed at the admission stage. The
learned Court below may proceed with the
trial of Complaint Case No. 6823 of 2019
under Section 138 of the Negotiable
Instrument Act against the revisionist No. 2
as being the Proprietor of M/s Neel
Jewelers, the entire liability for its action
lies on the revisionist No. 2.
----------
(2022)02ILR A709
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.01.2022
BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 2646 of 2014

Mohammad Sadik ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Viveka Nand Rai, Sri Sanjiv Kumar

Counsel for the Opposite Parties:
A.G.A., Sri Surendra Kumar Tripathi

(A)
Criminal
Law-
Code
of
Criminal
Procedure,
1973-
Section
397/
401-
Indian Penal Code, 1860- Section 406-
Dowry Prohibition Act- Section 2 & 6 -
Criminal revision against acquittal -The
finding of the trial court that articles were
given for the joint use and there is no
entrustment in favour of the accused,
hence no offence under section 406 IPC is
made out, are illegal and against the law.
From the provisions of section 6 of Dowry
Prohibition Act it is clear that complainant
was entitled to receive possession of the
articles which were given at the time of
marriage and were in possession of the
accused. Refusal in this regard will attract
section 406 IPC and if there is sufficient
and realiable evidence on record then
accused may be convicted.

Articles given at the time of marriage will
constitute an entrustment and cannot be said to
be for joint use- Refusal to return the said
articles will constitute the offence under section
406 of the IPC.

(B) Indian Penal Code, 1860- Section 406-
Indian Evidence Act, 1872- Section 65- As
documentary evidence a list of articles
alleged to be given at the time of marriage
and photocopy of receipt of motorcycle
have also been filed- The list has not been
duly proved as per provisions of Evidence
Act. There is no cogent and sufficient
evidence on the record to prove the
charge under section 406 IPC and hence