# M/s Rishabh Nath Developers & Builders and others v. State of U.P. and another - **Citation:** (2008) 2 ILRA 620 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2008-05-08 - **Bench:** Amar Saran - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-rishabh-nath-developers-builders-and-others-v-state-of-u-p-and-another-41045 - **Pages:** 2 ## Headnote U.P. Control of Gunda Act 1970-Section 2(b)-2(iv)-Petitioner habitual of creating terror in society repeated offence under chapter 16, 17 and 22 etc in FIR-serious allegations made sufficient material disclosed in notice-against notice the petitioner to submit explanation before the authority concerned-writ Court cannot see the sufficiency or insufficience of material-it is the authority to take appropriate decisionpetition dismissed. Held: Para 8 From the facts and circumstances as narrated above, it is apparent from reading of notice that the petitioner is committing offence again and again to create terror in society therefore he can be said to be habitual of committing the acts which have been narrated in the notice impugned. The petitioner has come up against the notice only and it is always open to him to submit reply to the same. Sufficiency of Evidence is not to be seen by the High Court at this stage of notice . This Court under judicial scrutiny under Article 226 of the Constitution is to see, on existence of material and not the sufficiency or adequacy of material in the notice under the Uttar Pradesh Control of Goondas Act, 1970 read-with U.P. Control of Goonda Rules, 1970. Case Law discussed: (1984) 3 Supreme Court Cases Page 14. ## Text 620 INDIAN LAW REPORTS ALLAHABAD SERIES [2008 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 08.05.2008 BEFORE THE HON'BLE AMAR SARAN, J. Crl. Misc. Application 9080 of 2008 M/s Rishabh Nath Developers & Builders (Pvt.) Ltd. and others ...Applicants Versus State of U.P. and another ...Respondents Counsel for the Applicants: Sri. D.C. Mathur Counsel for the Respondents: A.G.A. Code of Criminal Procedure-Section-482quashing of criminal proceeding-offence under Section 138/142 of Negotiable Instrument Act-challenge made on ground no notice received by the applicants before lodging complaint-can be probed suitably by the Trail Courtfollowing the guidelines of the Apex Court 2001 Cri.L.J. 4250.-necessary direction issued. Held: Para 8 This relief is being granted up to the stage of framing of charges provided the applicants give an undertaking to the satisfaction of the trial court that (a) their counsel will remain present on their behalf and represent them on each date, (b) they will not raise any objection as to their being the actual person who is facing trail, (c) they do not object to the evidence being recorded in their absence, (d) they undertake to be present before the Court whenever called upon to do so at any stage Case law discussed: (2005)4 SCC 417 AIR 1998 SC 3043 (1999) 4 SCC 567 2001 Cri.L.J. 4250 (Delivered by Hon'ble Amar Saran, J.) 1. Heard learned counsel for the applicants and learned Additional Government Government. 2. In this case admittedly the applicants have got themselves bailed out. 3. Now this application has been filed for quashing the further proceedings against the applicants in case no. 1639 of 2007, under sections 138/142 of Negotiable Instrument Act, pending in the court of Special Judicial Magistrate, C.B.I., Ghaziabad. 4. Placing reliance on the decisions of Supreme Court in the case of Prem Chand Vijay Kumar Vs. Yashpal Singh and another, (2005) 4 SCC 417, Sadanandan Bhadran Vs Mahhavan Sunil Kumar, AIR 1998 SC 3043 and SIL Import, USA Vs Exim Aides Silk Exporters, Banglore, (1999) 4 SCC 567, learned counsel for the applicants submits that in this case two notices were issued, first on 31.7.2997 and the second on 15.09.2007. However, I find that in the complaint there is no mention of the first notice. The argument of the learned counsel for the applicants is that the cause of action arises under section 138 read with 142(b) within 15 days of the receipt of the first notice. 5. However, in the case cited by the learned counsel for the applicants there was an admitted position that two notices were served, but this matter requires to be probed before the trail court as the complaint is silent about the first notice. 6. I think, it would be proper to permit the applicants to raise their 2 All] M/s Rishabh Nath Developers & Builders and others V. State of U.P. and another 621 objections at the stage of framing of charges before the trial court. 7. As the applicants have already secured bail, they are permitted to appear through counsel and raise their objections to the initiation of trail proceedings against them at the stage of framing of charges. 8. This relief is being granted up to the stage of framing of charges provided the applicants give an undertaking to the satisfaction of the trial court that (a) their counsel will remain present on their behalf and represent them on each date, (b) they will not raise any objection as to their being the actual person who is facing trail, (c) they do not object to the evidence being recorded in their absence, (d) they undertake to be present before the Court whenever called upon to do so at any stage. 9. These undertaking are being taken in the light of the directions of the Supreme Court in the case of M/s Bhaskar Industries Limited Vs. Bhiwani Denim and Apparels Limited, 2001 Cri.L.J. 4250. 10. With these observations this application is disposed of. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 19.06.2008 BEFORE THE HON'BLE RAKESH TIWARI, J. THE HON'BLE RAKESH SHARMA, J. Criminal Misc. Writ Petition 9642 of 2008 Hari Ram ...Petitioner Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri. S.P. Sharma Counsel for the Respondents: A.G.A. U.P. Control of Gunda Act 1970-Section 2(b)-2(iv)-Petitioner habitual of creating terror in society repeated offence under chapter 16, 17 and 22 etc in FIR-serious allegations made sufficient material disclosed in notice-against notice the petitioner to submit explanation before the authority concerned-writ Court cannot see the sufficiency or insufficience of material-it is the authority to take appropriate decisionpetition dismissed. Held: Para 8 From the facts and circumstances as narrated above, it is apparent from reading of notice that the petitioner is committing offence again and again to create terror in society therefore he can be said to be habitual of committing the acts which have been narrated in the notice impugned. The petitioner has come up against the notice only and it is always open to him to submit reply to the same. Sufficiency of Evidence is not to be seen by the High Court at this stage of notice . This Court under judicial scrutiny under Article 226 of the Constitution is to see, on existence of material and not the sufficiency or adequacy of material in the notice under the Uttar Pradesh Control of Goondas Act, 1970 read-with U.P. Control of Goonda Rules, 1970. Case Law discussed: (1984) 3 Supreme Court Cases Page 14. (Delivered by Hon'ble Rakesh Tiwari, J.) 1. Heard learned counsel for the parties.