# Mohammad Sikandar Bhai v. State of U.P. & Anr

- **Citation:** (2022) 3 ILRA 285
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-23
- **Case number:** Application U/S 482 No.617 of 2009
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-sikandar-bhai-v-state-of-u-p-anr-47580
- **Pages:** 6

## Headnote

A. Civil Law - Negotiable Instrument Act,
1881 - Sections 138 & 142 - Application
preferred for quashing the summoning order
under NI Act.- Applicant issued 4 cheques. All
were dishonoured due to the fact that the
account of payee was closed.-Legal notice sent
to the applicant for making payment. O.P.
No.02 filed complaint before court below-
St.ment u/S 200 and 202 Cr.P.C. recordedSummons issued against applicant- After legal
notice of one month, 15 days' period for
committing the offence will start and thereafter
after expiry of 15 days, the offence is
completed and within one month if no
complaint filed, Magistrate is barred to take
cognizance of the complaint which is filed
beyond limitation period, if delay has not been
properly explained. Application allowed.

Application allowed. (E-12)

List of Cases cited:-

## Text

3 All. Mohammad Sikandar Bhai Vs. State of U.P. & Anr.
285

"The
power
of
scrutiny
exercisable by the High Court under
Section 378, CrPC should not be routinely
invoked where the view formed by the trial
court was a ''possible view'. The judgment
of the trial court cannot be set aside merely
because the High Court finds its own view
more probable, save where the judgment of
the trial court suffers from perversity or the
conclusions drawn by it were impossible if
there was a correct reading and analysis of
the evidence on record. To say it
differently, unless the High Court finds that
there is complete misreading of the
material evidence which has led to
miscarriage of justice, the view taken by
the trial court which can also possibly be a
correct view, need not be interfered with.
This self-restraint doctrine, of course, does
not denude the High Court of its powers to
re-appreciate the evidence, including in an
appeal against acquittal and arrive at a
different firm finding of fact."

23. After a thorough scrutiny of
statements of witnesses, we find that the
judgment of the Trial Court acquitting the
accused persons is based on a proper
appreciation of the evidence and the
findings of the court below are not perverse
and it needs no interference by this Court.

24. In view of the aforesaid
discussion, we are of the view that there are
no sufficient ground for admitting the
appeal. The appeal is dismissed summarily
at the stage of admission.
----------
(2022)03ILR A285
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.12.2021

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.
Application U/S 482 No.617 of 2009

Mohammad Sikandar Bhai ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Dr. S.B. Singh

Counsel for the Opposite Parties:
A.G.A., Sri Mohamad Aslam Ansari

A. Civil Law - Negotiable Instrument Act,
1881 - Sections 138 & 142 - Application
preferred for quashing the summoning order
under NI Act.- Applicant issued 4 cheques. All
were dishonoured due to the fact that the
account of payee was closed.-Legal notice sent
to the applicant for making payment. O.P.
No.02 filed complaint before court below-
St.ment u/S 200 and 202 Cr.P.C. recordedSummons issued against applicant- After legal
notice of one month, 15 days' period for
committing the offence will start and thereafter
after expiry of 15 days, the offence is
completed and within one month if no
complaint filed, Magistrate is barred to take
cognizance of the complaint which is filed
beyond limitation period, if delay has not been
properly explained. Application allowed.

Application allowed. (E-12)

List of Cases cited:-
1. Prem Chandra Vijay Kumar Vs Yashpal Singh
& anr.

2. SII Import, USA Vs Exim Aides Silk Exporters
Bangalore

3. Sadanandan Bhadran Vs Madhavnan Sunil
Kumar (1998)6 SCC 514

(Delivered by Hon'ble Brij Raj Singh, J.)

1. Heard Dr. S.B. Singh, learned
counsel for the applicant and learned
A.G.A. for the State-opposite party no.1.
No one appears on behalf of opposite party
no.2, even in the revise call.
286 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This application under Section 482
Cr.P.C. has been preferred by the applicant
for quashing the summoning order dated
20.06.2006, under Section 138 of the
Negotiable Instruments Act as well as
proceeding in Case No.1567 of 2006 (Firm
Khalique and Brothers Vs. Firm Aqsa
Testiles), pending in the Court of Chief
Judicial Magistrate, Mau, District Mau.

3. The opposite party no.2 has made
averment that the applicant issued four
cheques in his favour (Cheque No.16049
dated 10.06.2005 for Rs.30,000/-, Cheque
No.16050 dated 20.06.2005 for Rs.30,000/-
, Cheque No.16051 dated 25.08.2005 for
Rs.30,000/- and Cheque No.16052 dated
01.07.2005
for Rs.25,000/-).
All
the
cheques were submitted in I.D.B.I. Bank at
Varanasi and the all the cheques were
dishonoured due to the fact that the account
of payee was closed. The legal notice was
sent by opposite party no.2 to the applicant
on 13.12.2005 requiring the opposite party
no.2 to make payment of Rs.1,15,000/-,
failing which the case will be executed.
The opposite party no.2 filed the complaint
before the court below on 21.03.2006
which is annexed as Annexure No.3 to the
application.

4. The statement under Sections 200
and 202 Cr.P.C. were recorded by the court
below and thereafter, summons were issued
on 20.06.2006 for appearing before the
Court. The
applicant
has
challenged
summoning order as well as entire case
instituted against him.

5. Learned counsel for the applicant
submits that opposite party no.2 has
mentioned in the complainant itself that
cause of action arose on 28.11.2005 and
thereafter opposite party no.2 had given
legal notice on 13.12.2005. After giving
one month's notice and thereafter 15 days'
period as mentioned in Sections 138 and
142 of the Negotiable Instrument Act
(here-in-after referred to as "the N. I. Act"),
the cause of action arose on 26.01.2006.
The
complaint
case
was
filed
on
21.03.2006.

6. Learned counsel for the applicant
has advanced argument that opposite party
no.2 filed the case beyond reasonable
limitation. The opposite party no.2 has not
given any plausible reason for delay in the
entire complaint; thus, the case under N.I.
Act is liable to be quashed.

7. Sections 138 and 142 of the N.I.
Act are relevant for disposal of the present
case. Sections 138 and 142 of the N.I. Act
is reproduced as below:

"Section 138. Dishonour of
cheque for insufficiency, etc., of funds in
the account. --Where any cheque drawn by
a person on an account maintained by him
with a banker for payment of any amount of
money to another person from out of that
account for the discharge, in whole or in
part, of any debt or other liability, is
returned by the bank unpaid, either
because of the amount of money standing to
the credit of that account is insufficient to
honour the cheque or that it exceeds the
amount arranged to be paid from that
account by an agreement made with that
bank, such person shall be deemed to have
committed an offence and shall, without
prejudice to any other provisions of this
Act, be punished with imprisonment for [a
term which may be extended to two years],
or with fine which may extend to twice the
amount of the cheque, or with both:

Provided that nothing contained
in this section shall apply unless --
3 All. Mohammad Sikandar Bhai Vs. State of U.P. & Anr.
287

(a) the cheque has been presented
to the bank within a period of six months
from the date on which it is drawn or
within the period of its validity, whichever
is earlier;

(b) the payee or the holder in due
course of the cheque, as the case may be,
makes a demand for the payment of the
said amount of money by giving a notice in
writing, to the drawer of the cheque,
[within thirty days] of the receipt of
information
by
him
from
the
bank
regarding the return of the cheque as
unpaid; and

(c) the drawer of such cheque
fails to make the payment of the said
amount of money to the payee or, as the
case may be, to the holder in due course of
the cheque, within fifteen days of the
receipt of the said notice.

Section
142.
Cognizance
of
offences. -- [(1)] Notwithstanding anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974) --

(a) 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;

(b) such complaint is made within
one month of the date on which the cause of
action arises under clause (c) of the
proviso to section 138: [Provided that the
cognizance of a complaint may be taken by
the Court after the prescribed period, if the
complainant satisfies the Court that he had
sufficient cause for not making a complaint
within such period.]

(c) no court inferior to that of a
Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any
offence punishable under section 138.]

(2) The offence under Section 138
shall be inquired into and tried only by a
court within whose local jurisdiction,--

(a) if the cheque is delivered for
collection through an account, the branch
of the bank where the payee or holder in
due course, as the case may be, maintains
the account, is situated; or

(b) if the cheque is presented for
payment by the payee or holder in due
course, otherwise through an account, the
branch of the drawee bank where the
drawer maintains the account, is situated."

8. I have gone through the records.

9. The cause of action arose on
28.11.2005, therefore, the opposite party
no.2 had sent legal notice on 13.12.2005 to
the applicant. The time of one month notice
expired on 11.01.2006 as per Sections 142
(1) (b) of the N.I. Act. If fifteen days'
further added, the same will expire on
26.01.2006. The opposite party no.2 filed
the case under the N.I. Act on 21.03.2006,
which is much beyond the time schedule
prescribed under Sections 138 (c) and 142
(1) (b) of the N.I. Act.

10. Learned counsel for the applicant has
cited some cases i.e. PREM CHAND VIJAY
KUMAR Vs. YASHPAL SINGH AND
ANOTHER, SIL IMPORT, USA Vs. EXIM
AIDES SILK EXPORTERS, BANGALORE;
AND
SADANANDAN
BHADRAN
Vs.
MADHAVAN SUNIL KUMAR.
288 INDIAN LAW REPORTS ALLAHABAD SERIES

In the case of Prem Chand Vijay
Kumar, Hon'ble Supreme Court has held
that the Magistrate cannot take cognizance
if the complaint is not filed within one
month from the date, of which the cause of
action arose. The Court has enunciated that
cause of action will arise just soon after
completion of the offence and period of
limitation. Para 15 of the said judgment is
reproduced as below:-

"15 . In SIL Import, USA v. Exim
Aides Silk Exporters it was held that the
language used in Section 142 admits of no
doubt that the Magistrate is forbidden from
taking cognizance of the offence if the
complaint was not filed within one month of
the date on which the cause of action arose.
Completion of the offence is the immediate
forerunner of rising of the cause of action.
In other words, cause of action would arise
soon after completion of the offence and
period of limitation for filing of the
application starts running simultaneously."

11. Similarly, the case of Sil Import,
USA Vs. Exim Aides Silk Exporters,
Bangalore is also important to mention. The
Court has pronounced the judgment, wherein,
it is provided that after legal notice of one
month, fifteen days' period for committing
the offence will start and thereafter after
expiry of fifteen days, the offence is
completed and within one month, if, no
complaint is filed the Magistrate is barred to
take cognizance of the complaint, which is
filed beyond limitation period. Para 24 of the
said judgment is reproduced as below:-

"24. The upshot of the discussion
is, on the date when the notice sent by Fax
reached the drawer of the cheque the period
of 15 days (within which he has to make the
payment) has started running and on the
expiry of that period the offence is completed
unless the amount has been paid in the
meanwhile. If no complaint was filed within
one month therefrom the payee would stand
forbidden from launching a prosecution
thereafter, due to the clear interdict
contained in Section 142 of the Act."

12. In the case of Sadanandan
Bhadran Vs. Madhavan Sunil Kumar
reported in (1998) 6 SCC 514, Hon'ble
Supreme Court has dealt with the provision
of Section 20 of the Civil Procedure Code
and cause of action has been dealt which is
relevant in the present case. Para 6, 7 & 8 of
the said judgment is reproduced as below:-

"6. In a generic and wide sense (as
in Section 20 of the Civil Procedure Code,
1908) 'cause of action' means every fact
which it si necessary to establish to support a
right or obtain a judgment. Viewed in that
context, the following facts are required to be
proved to successfully prosecute the drawer
for an offence under Section 138 of the Act:

(a) that the cheque was drawn for
payment of an amount of money for
discharge of a debt/liability and the cheque
was dishonoured;

(b) that the cheque was presented
within the prescribed period;

(c) that the payee made a demand
for payment of the money by giving a notice
in writing to the drawer within the stipulated
period; and

(d) that the drawer failed to make
the payment within 15 days of the receipt of
the notice.

If we were to proceed on the
basis of the generic meaning of the term
3 All. Mohammad Sikandar Bhai Vs. State of U.P. & Anr.
289
'cause of action' certainly each of the above
facts would constitute a part of the cause of
action but then it is significant to note that
clause (b) of Section 142 gives it a
restrictive meaning, in that, it refers to only
one fact which will give rise to the cause of
action and that is the failure to make the
payment within 15 days from the date of the
receipt of the notice. The reason behind
giving such a restrictive meaning is not far
to seek. Consequent upon the failure of the
drawer to pay the money within the period
of 15 days as envisaged under clause @ of
the proviso to Section 138, the liability of
the drawer for being prosecuted for the
offence he has committed arises, and the
period of one month for filing the complaint
under Section 142 is to be reckoned
accordingly. The combined reading of the
above two sections of the Act leaves no
room for doubt that cause of action within
the meaning of Section 142 arises - and can
arise - only once.

7. Besides the language of Sections
138 and 142 which clearly postulates only
one cause of action there are other
formidable impediments which negates the
concept of successive causes of action. One
of them is that for dishonour of one cheque
there cane be only one offence and such
offence
is
committed
by
the
drawer
immediately in his failure to make the
payment within fifteen days of the receipt of
the notice served in accordance with clause
(b) of the proviso to Section 138. That
necessarily means that for similar failure
after service of fresh notice on subsequent
dishonour the drawer cannot be liable for
any offence nor can the first offence be
treated as non est so as to give the payee a
right to file a complaint treating the second
offence as the first one. At that stage it will
not be a question of waiver of the right of the
payee to prosecute the drawer but of
absolution of the drawer of an offence, which
stands already committed by him and which
cannot be committed by him again.

8. The other impediment to the
acceptance of the concept of successive
causes of action is that it will make the period
of limitation under clause of Section 142
otiose, for, a payee who failed to file his
complaint within one month and thereby
forfeited his right to prosecute the drawer,
can circumvent the above limitative clause by
filing a complaint on the basis of a fresh
presentation of the cheque and its dishonour.
Since in the interpretation of statutes the
Court always presumes that the legislature
inserted every part thereof for a purpose and
the legislative intention is that the very part
should have effect the above conclusion
cannot be drawn for, that will make the
provision for limiting the period of making
the complaint nugatory."

13. The entire complaint filed by
opposite party no.2 does not indicate any
reason as to why delay took place in filing
the complaint. The averment regarding the
delay and time-barred complaint is made in
para 11 and 12 of the instant application
and the opposite party no.2 has not denied
the contents of para 11 and 12 while giving
reply in para 10 of the counter affidavit the
opposite party no.2 has said that case is
argumentative and suitable reply will be
given at the time of argument. The opposite
party no.2 has rather admitted the contents
of para 11 and 12 because vague reply has
been given. The complaint filed by the
opposite party no.2 does not satisfy the test
envisaged in Sections 138 and 142 of the
N.I. Act.

14. In view of the aforesaid
discussion, I set aside the summoning order
dated 20.06.2006 and quash the criminal
290 INDIAN LAW REPORTS ALLAHABAD SERIES
proceeding in Case No.1567 of 2006 (Firm
Khalique and Brothers Vs. Firm Aqsa
Testiles), pending in the Court of Chief
Judicial Magistrate, Mau, District Mau.

15. The application stands allowed.
----------
(2022)03ILR A290
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.02.2022

BEFORE

THE HON'BLE UMESH KUMAR, J.

Application U/S 482 No.810 of 2022

Ashish Singh @ Rinku Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ran Vijay Singh

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Quashing
of charge sheet as well as summoning order-
'Per Incuriam' are those decisions which are
given in ignorance or forgetfulness of some
statutory provisions or authority binding on
the court concerned or a St.ment of law
caused by inadvertence or conclusions that
have been arrived at without application of
mind or proceeded without any reason so that
in such a case some part of the decision or
some step in the reasoning on which it is
based, is found, on that account to be
demonstratively wrong.

B. Criminal Law - Indian Penal Code, 1860
- Section 506 -. is cognizable and has to be
tried as a St. case and not as complaint case.

Application dismissed. (E-12)

List of Cases cited:-
1. Virendra Singh Vs St. of U.P. & ors. 2000(2)
JCC 649(All)

2. Bahori & ors. Vs St. of U.P. & ors. 2017(10)
ADJ 480

3. Dr. Rakesh Kumar Sharma Vs St. of U.P. &
anr. 2007(9) ADJ 478

4. Awadhesh Kumar & ors. Vs St. of U.P. & anr.
2008(2) ADJ 253

5. Dhanveer & ors. Vs St. of U.P. & anr. 2010(9)
ADJ 496

6. Mata Sewak Upadhyaya Vs St. of U.P. & ors.
1995 AWC 2031(FB)

7. Bhagwan Singh Vs St. of U.P. & ors. 2016(3)
ACR 3365

8. Praveen Kumar & anr. Vs St. of U.P. & ors.
2011(2) ACR 2083
(Delivered by Hon'ble Umesh Kumar, J.)

1. Heard learned counsel for the
applicant and learned A.G.A.appearing for
State of U.P.-opposite party no.1 and
perused the material placed on record.

2. The instant application under
Section 482 has been filed seeking
quashing of the impugned charge-sheet
dated 04.01.2019 as well as summoning
order dated 15.10.2019 in Case No.1216 of
2019 (State vs. Ashish Singh @ Rinku
Singh) arising out of Case Crime No. 257
of 2018 under Sections 147, 149, 352, 427,
504 and 506 IPC, P.S. Lohta, District
Varanasi,
pending
before
Judicial
Magistrate-IV, Varanasi.

3. It is submitted by learned counsel
for the applicant that initially F.I.R. has
been lodged against two known persons
and some unknown persons. Even during
investigation their name could not be