# Mohammad Yaqoob Ansari v. State of U.P. & Anr

- **Citation:** (2019) 4 ILRA 217
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-26
- **Case number:** Crl. Misc. Application (U/S 482 Cr. P.C.) No. 48396 of 2014
- **Bench:** Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-yaqoob-ansari-v-state-of-u-p-anr-44937
- **Pages:** 7

## Headnote

Law
-
The
Negotiable
Instruments Act, 1881 - Section 138 (b)
/Proviso to Section 142(b) - Second
Notice/Reminder - Though the complaint
is required to be submitted within one
month from the date on which the cause
of action arises but by adding the
provision/proviso, vide amendment w.e.f
06.02.2003, cognizance of the complaint
may be taken by the court even after the
prescribed period of 30 days, if the
complainant satisfies the Court about
the reason for not making the complaint
within said period- The trial court would,
after parties have led evidence before it,
judge whether there was sufficient
reason shown by the complainant or not
for having moved the complaint beyond
30 days. Section 138 (b) of the Act - On
facts, the second notice (reminder)
would
fall
within
the
time
limit
prescribed under section 138 (b) of the
Act. Nowhere has it been laid-down that
in case of non-payment of the cheque, if
notice
is
issued
to
the
defaulting
accused, its reminder is barred-The
opposite party no. 2 cannot be put to
disqualification only because he issued
reminder within 17 days, instead of the
statutorily laid-down period of 30 days,
therefore,
the
complaint
should
be
treated well within time.

Application u/s 482 Cr.P.C rejected. (E-3)

List of cases cited: -

## Text

4 All. Mohammad Yaqoob Ansari Vs. State of U.P. & Anr.
217
23.1.2017, had observed that in case the
applicants appear before the court within
thirty days and apply for bail, their prayer
for bail shall be considered in accordance
with
law
expeditiously.
Instead
of
appearing before the court concerned in
compliance of the said direction, the
accused applicants through counsel filed
the
application
under
section
245(2),Cr.P.C. for discharge. The stage of
section 245 will come into play after the
stage of section 244, Cr.P.C. When the
accused has not appeared or not brought
before the Magistrate, the question of
discharge does not arise at all. The
accused-applicants will have to adhere to
the provisions of law as provided in the
Code of Criminal Procedure.

23. Taking into account the entire facts
and circumstances of the case and upon
perusal of the record, there appears to be no
illegality or infirmity in the orders
impugned passed by the courts below and
no
ground
is
made
out
warranting
interference under section 482,Cr.P.C.

24. In view of the above, the present
application
lacks
merit
and
is,
accordingly, rejected.
----------
(2019)12 ILR A217

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.07.2019

BEFORE
THE HON'BLE DINESH KUMAR SINGH-I, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
48396 of 2014

Mohammad Yaqoob Ansari ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Salman Ahmad

Counsel for the Opposite Parties:
Govt. Advocate, Sri Diwakar Mishra

A.
Criminal
Law
-
The
Negotiable
Instruments Act, 1881 - Section 138 (b)
/Proviso to Section 142(b) - Second
Notice/Reminder - Though the complaint
is required to be submitted within one
month from the date on which the cause
of action arises but by adding the
provision/proviso, vide amendment w.e.f
06.02.2003, cognizance of the complaint
may be taken by the court even after the
prescribed period of 30 days, if the
complainant satisfies the Court about
the reason for not making the complaint
within said period- The trial court would,
after parties have led evidence before it,
judge whether there was sufficient
reason shown by the complainant or not
for having moved the complaint beyond
30 days. Section 138 (b) of the Act - On
facts, the second notice (reminder)
would
fall
within
the
time
limit
prescribed under section 138 (b) of the
Act. Nowhere has it been laid-down that
in case of non-payment of the cheque, if
notice
is
issued
to
the
defaulting
accused, its reminder is barred-The
opposite party no. 2 cannot be put to
disqualification only because he issued
reminder within 17 days, instead of the
statutorily laid-down period of 30 days,
therefore,
the
complaint
should
be
treated well within time.

Application u/s 482 Cr.P.C rejected. (E-3)

List of cases cited: -

1. MSR Leathers Vs. S. Palaniappan & anr.
((2013) 1 Supreme Court Cases 177,

2. Neerja Parekh Vs. Amit Enterprises, 2012
Law Suit (Del) 474

3. Kapil Upadhyay vs. Milana Auto, 2006
Lawsuit (MP) 140.
218 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Dinesh Kumar
Singh-I, J.)

1. Heard Sri Salman Ahmad, learned
counsel for the applicant, Sri Diwakar
Mishra, learned counsel for the opposite
party no. 2 and Sri A.D. Mishra, learned
A.G.A. appearing for the State and
perused the record.

2. This application under Section
482 Cr.P.C has been moved with a prayer
to quash the impugned summoning order
dated 04.02.2012 passed by Chief Judicial
Magistrate, Jalaun at Orai in Complaint
Case No.2646 of 2013 (Anil Babu
Niranjan
vs.
Mohammad
Yaquoob
Mansoori) under section 138 Negotiable
Instrument Act, P.S. Kotwali Orai, District
Jalaun at Orai and the entire proceedings
of complaint case and also a prayer is
made to stay the proceedings in this case
till the disposal of this application.

3. In the affidavit filed in support of
the stay application it is stated that as per
the version contained in the complaint,
the opposite party no. 2 runs an Electronic
shop in Gandhi Market, Orai and the
applicant is a proprietor of M/s. N.I. Purse
Belt Store on main road, Orai. He does
business by the said name. As per
prosecution case, both the businessmen
i.e. the applicant as well as the opposite
party no. 2 were having good relation and
since the applicant needed money for
enhancement
of
his
business,
the
applicant borrowed Rs.3.00 lacs from
opposite party no. 2. On 7.10.2013 a
cheque bearing no.038386 of Union Bank
Branch, Orai was issued by the applicant
for returning the said amount, which was
presented by opposite party no. 2 before
the Bank on 9.10.2013 but the same was
returned with an endorsement that there
was no sufficient balance in the account.
As per allegation in the complaint, the
said information of dishonouring of
cheque was given to the applicant and the
said amount of Rs.3.00 lacs was asked to
be paid but the same was refused by the
applicant where-after on 21.10.2013 the
opposite party no. 2 issued notice under
section 138 of Negotiable Instrument Act
through his counsel but after passing of
15 days time when the money was not
paid back, on 26.11.2013 opposite party
no. 2 again sent a notice through his
counsel to the applicant which did not
return and thereafter on 18.12.2013
opposite party no. 2 filed a complaint
under
section
138
of
Negotiable
Instrument Act. The complainant/opposite
party no. 2 had given statement under
section 200 Cr.P.C. repeating the same
version as were mentioned in the
complaint, copy of the same has been
annexed as Annexure-2.

4. The Magistrate without taking
into account the facts and circumstances
of the case, illegally passed the impugned
order dated 4.2.2014, which is annexed as
Annexure-3. In fact the applicant had not
given any cheque to the opposite party no.
2 rather opposite party no. 2 fraudulently
obtained the cheque regarding which the
applicant could not know and when
opposite party no. 2 issued notice on
21.10.2013 which was received by him,
he came to know about the fraud and
cheating committed by opposite party no.
2. It is further mentioned that no witness
has been examined in respect of amount
of Rs.3.00 lacs having been paid by the
opposite party no. 2 to the applicant nor
any date or time or place has been
disclosed when the said amount was lent.
The complaint was barred under section
142 of Negotiable Instrument Act which
4 All. Mohammad Yaqoob Ansari Vs. State of U.P. & Anr.
219
provides that it should be moved within
one month of the date on which the cause
of action arises while in the present case
notice was sent on 21.10.2013 and the
complaint has been filed on 18.12.2013
i.e. after 58 days. It is further mentioned
that it is settled law that where two
demand notices were served on the
accused, the cause of action would arise
only on expiry of 15 days time from the
date of first notice. The subsequent notice
would not give rise to any fresh cause of
action. It is beyond imagination that the
opposite party no. 2 would lend amount of
Rs.3.00 lacs to the applicant without there
being relationship between them. In fact,
no such incident has happened as
suggested by the opposite party no. 2.
Neither any amount was taken by the
applicant nor any cheque was issued by
him in favour of the opposite party no. 2.
So far as the cheque in question is
concerned, it was dishonestly taken by the
opposite party no. 2 from the applicant in
which subsequently he filled up the
amount; hence the summoning order
deserves to be quashed. Reliance has been
placed from the side of the learned
counsel for the applicant on MSR
Leathers
vs.
S.
Palaniappan
and
another ((2013) 1 Supreme Court Cases
177,
the
relevant
paragraphs
are
reproduced below.

"2. After entering appearance,
the drawer filed an application seeking
discharge on the ground that the payee
could not create more than one cause of
action in respect of a single cheque and
the complaint in question having been
filed on the basis of the second
presentation and resultant second cause
of action was not maintainable. The
Magistrate
accepted
that
contention
relying upon a Division Bench decision of
Kerala High Court in Kumaresan v.
Ameerappa (1991) 1 Ker L.T. 893 and
dismissed the complaint. The order passed
by the Magistrate was then questioned
before the High Court of Kerala who
relying upon Kumaresan's case (supra)
upheld
the
order
passed
by
the
Magistrate. The matter was eventually
brought up to this Court by special leave.
This Court formulated the following
question for determination:

"Whether payee or holder of cheque
can initiate proceeding of prosecution
under
Section
138
of
Negotiable
Instrument Act, 1881 for the second time
if he has not initiated any action on
earlier cause of action?"

3. Answering the question in the
negative this Court held that a combined
reading of Sections 138 and 142 of the Act
left no room for doubt that cause of action
under Section 142(b) can arise only once.
The conclusion observed by the court is
supported not only by Sections 138 and
142 but also by the fact that the dishonour
of cheque gives rise to the commission of
offence only on the failure to pay money
when a notice is served upon the drawer
in accordance with clause (b) of the
proviso to Section 138. The Court further
held that if the concept of successive
causes of action were to be accepted the
same would make the limitation under
Section
142(b)
otiose.
The
Court
observed:

7. Besides the language of Sections
138 and 142 which clearly postulates only
one cause of action, there are other
formidable impediments which negate the
concept of successive causes of action.
One of them is that for dishonour of one
cheque, there can be only one offence and
such offence is committed by the drawer
immediately on his failure to make the
220 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

 He has also relied upon the
judgment of High Court of Delhi in the
case
of
Neerja
Parekh
vs. Amit
Enterprises, 2012 Law Suit (Del) 474
and the judgment of High Court of
Madhya Pradesh in the case of Kapil
Upadhyay vs. Milana Auto, 2006
Lawsuit (MP) 140.

5. From the side of the opposite party
no. 2 counter affidavit has been filed in
which it is stated that the applicant and the
opposite party no. 2 were having good
relation in the business because of which he
had lent Rs.3.00 lacs to him when the same
was demanded to enhance his business.
When the said amount was demanded by
the opposite party no. 2, the applicant had
issued cheque no. 038386 of Union Bank
Branch, Orai which was presented by him
before the said Bank on 9.10.2013 but the
same was returned by the Bank with an
endorsement that there was no sufficient
balance in the account of the applicant. The
opposite party no. 2 thereafter sent
information on 10.10.2013 in this regard to
the applicant but the applicant refused to
pay the said amount then he gave notice
through his counsel demanding the said
amount on 21.10.2013 but even then the
applicant did not pay back the said amount
thereafter the opposite party no. 2 sent
second notice through his counsel on
26.11.20013 but in spite of that the said
amount was not returned, hence he had filed
the present complaint. It is further
mentioned that his statement was recorded
under section 200 Cr.P.C by CJM, Orai and
the summoning order against the applicant
has been rightly issued under section 138 of
Negotiable Instrument Act. The opposite
party no. 2 had informed the applicant
through notice dated 21.10.2013 but he did
not take any care to make the payment of
the amount which was mentioned in the
notice, hence reminder was issued but even
then the said amount was not paid. The
cause of action has arisen on 26.11.2013
and the complaint was filed within time.
Therefore, the complaint is not barred under
section 142 of Negotiable Instrument Act.
Therefore, the offence is made out against
the
accused-applicant.
The
impugned
judgment deserves to be upheld and the
application deserves to be dismissed.

6. During oral argument, learned
counsel for the applicant has mainly
argued that as per the case of the
complainant, the cheque was presented on
9.10.2013 and on the same day it got
dishonoured, where-after first notice was
sent to the applicant on 21.10.2013 and its
reminder was sent on 26.11.2013 while
the complaint was moved on 18.12.2013,
therefore, the cause of action should not
be taken to have arisen on 26.11.2013
rather the same should be taken to have
arisen on 21.10.2013 when the first notice
was sent and therefore, from the said date,
the complaint is apparently filed beyond
30 days which makes it time barred. He
further argued that the date of giving
money by the opposite party no. 2 to the
4 All. Mohammad Yaqoob Ansari Vs. State of U.P. & Anr.
221
applicant and the witness before whom
the said money was given, have not been
disclosed which clearly casts doubt upon
the said payment of amount.

7. Both the above points raised by
the learned counsel for the applicant have
been rebutted by the learned counsel for
the opposite party no. 2 stating that the
cause of action could be treated to have
arisen on 26.11.2013 and from that date,
the complaint would be well within time
of 30 days as per statutory provision.

8. After having heard learned
counsel for the both the parties, I am of
the opinion that the accused-applicant has
not taken notice of proviso of section 142
of Negotiable Instrument Act, which
provide as under:

"142. Cognizance of offences.-
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.

Explanation- For the purposes
of clause (a), where a cheque is delivered
for collection at any branch of the bank of
the payee or holder in due course, then,
the cheque shall be deemed to have been
delivered to the branch of the bank in
which the payee or holder in due course,
as the case may be, maintains the account.

9. It is very much clear by the
above-mentioned proviso that though the
complaint is required to be submitted
within one month from the date on which
the cause of action arises but by adding
the provision/proviso stated above, by
bringing amendment with effect from
06.02.2003, cognizance of the complaint
may be taken by the court even after the
prescribed period of 30 days, if the
complainant satisfies the Court that he has
sufficient cause for not making the
complaint within said period.

10. It would be pertinent to refer
here to section 138 of the said Act also,
which is reproduced herein below.

"138. Dishonour of cheque for
insufficiency, etc., of funds in the
account. --Where any cheque drawn by a
222 INDIAN LAW REPORTS ALLAHABAD SERIES
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--

(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.

Explanation.-- For the purposes
of this section, "debt or other liability"
means a legally enforceable debt or other
liability."

11. The above quoted sub-clause (b)
of the said section lays down that payee or
the holder in due course of the cheque,
may make a demand for payment of
money by giving a notice in writing to the
drawer of cheque within 30 days of the
receipt of information by him from the
bank regarding return of the cheque as
unpaid. In the case in hand, it is apparent
that the cheque which is alleged by the
opposite party no. 2 to have been handed
over by the accused-applicant, was
presented before the Bank on 9.10.2013
which was returned by the bank with an
endorsement that there was no sufficient
balance in the account of the applicant
and information regarding this was sent
by the opposite party no. 2 immediately to
the accused-applicant on 10.10.2013 but
the applicant refused to make the
payment, pursuant to which opposite
party no. 2 issued notice through counsel
for demanding Rs.3.00 lacs on 21.10.2013
i.e. within 12 days from the information
being given by the Bank about dishonour
of the cheque. Thereafter, the opposite
party no. 2 sent another notice through his
counsel on 26.11.2013 to the applicant,
which was within 17 days of the
information give by the bank with respect
to dishonour of the cheque. It is apparent
from the said date that from 9.10.2013
when the cheque was presented before the
bank and was returned unpaid, the
reminder notice dated 26.11.2013 was
given within 17 days, however, the same
could have been given within upto 30
days.
Therefore,
the
second
notice
(reminder) would fall within the time
limit prescribed under section 138 (B) of
the Act. Nowhere has it been laid-down
that in case of non-payment of the cheque,
if notice is issued to the defaulting
accused, its reminder is barred. In the
present case, in my view the opposite
4 All. R.P. Agnihotri Vs. U.P. Coop Federation Ltd.
223
party
no.
2
cannot
be
put
to
disqualification only because he issued
reminder on 26.11.2013 with respect to
the accused-applicant not having paid the
amount and asking for the same to be
paid. I have already held that the said
reminder was within 17 days, sent to the
applicant instead of the statutorily laiddown period of 30 days.

12. Now, I would like to draw
attention to the proviso to section 142 of
the abovementioned Act which clearly
lays down that the complaint is required
to be submitted within one month from
the date on which cause of action arises.
However, the said complaint can also be
preferred even after the statutory time
period of 30 days, if the complainant
satisfies
the
Court
that
there
was
sufficient cause for not moving the
complaint within the said time limit. This
provision can be interpreted to mean that
the trial court would, after parties have led
evidence before it, judge whether there
was sufficient reasons shown by the
complainant/opposite party no. 2 or not
for having moved the complaint beyond
30 days. In the present case, if the time
period is calculated from the first date of
notice being sent to the accused-applicant
i.e. 21.10.2013, the complaint would
appear to fall beyond 30 days limit but in
that case also the trial court would be
expected to assess the reasons why the
said delay was committed on the basis of
evidence, which would be adduced by the
complainant. However, in the present
case, in my view, I have already held that
the reminder dated 21.10.2013 of the
notice would certainly be treated to be a
date on which the cause of action has
arisen because the same being within 30
days of the information being given by
the bank regarding dishonour of cheque,
therefore, the complaint should be treated
well within time. Therefore, in neither
situation whether the complaint be treated to
have been filed beyond limit of statutory
period or within the limit, the entire matter
has to be decided by the trial court on the
basis of evidence to be led by both the sides
and it would be highly improper to disqualify
the opposite party no. 2 from proceeding
with the complaint only because a technical
flaw is being raised that the cause of action
would be treated to have arisen on the date of
first notice i.e. 21.10.2013.

13. The rulings which have been relied
upon by the learned counsel for the applicant
which have been cited above, do not appear to
deal with this issue as to whether, in case a
reminder notice is issued, date of issuance of
the same could be treated to be the date on
which the of cause of action would be treated
to have arisen.

14. In view of above, I am of the
view that this application deserves to be
dismissed and it is accordingly dismissed.
The interim order, if any stands vacated.
----------
(2019)12 ILR A223

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.12.2019

BEFORE
THE HON'BLE AJIT KUMAR, J.

Service Single No. 703 of 1995

R.P. Agnihotri ...Petitioner
Versus
U.P.Coop Federation Ltd. ...Respondent

Counsel for the Petitioner:
Sri A.A. Rizvi, Sri H.K. Misra

Counsel for the Respondent: