# Mohd. Mohsin v. State of U.P. & Anr

- **Citation:** (2024) 7 ILRA 593
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-09
- **Case number:** Application U/S 482. No. 29862 of 2019
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-mohsin-v-state-of-u-p-anr-54536
- **Pages:** 8

## Headnote

Criminal Law - Application under Section
482 CrPC- Proceedings under Section 138 NI
Act- under challenge- cheque issued by the
applicant dishonoured
due to "insufficient
funds"- cheque dishonoured for the reason
being referred to the drawer- covered under
Section 138 NI Act- documents sent through
registered post- presumed to have been served
after the expiry of 30 days- Section 27 of the
General Clauses Act- Complaint has to be filed
in the name of the payee of the cheque-not his
power of attorney holder- no cause of action
arose in favour of opposite party on the basis of
presumption of notice- proceedings of criminal
complaint quashed- application allowed. (Paras
16, 17, 19, 20 and 21)

HELD:
Thus, from the specific judgments in the cases
of Electronics Trade &Technology Development
Corpn.
Ltd.,
Secunderabad
(supra),
K.K.
Sidharthan(supra) and Modi Cements Ltd.
(supra), the dishonour of cheque for the
reasons 'referred to the drawer' is fully covered
under the provision of Section 138 of N.I. Act,

## Text

7 All. Mohd. Mohsin Vs. State of U.P. & Anr.
593
of abusive language or there was any
element of being likely to incite the person
insulted to commit breach of peace at least
qua to applicants no. 2 to 8. Accordingly, in
view of A.M. Mohan (supra), it is a fit case
to exercise inherent powers under Section
482 Cr.P.C. as ingredients of referred
offences
are
not
made
out
against
applicants no. 2 to 8.

22. Accordingly, charge sheet dated
23.03.2023 and entire proceedings in
Criminal
Case
No.
130/2023
under
Sections 498-A, 323, 504, 506 IPC and
Section 3/4 of D.P. Act, arising out of Case
Crime
No.
45/2023,
Police
Station-
Mundali, District- Meerut, pending before
Judicial Magistrate-I, Meerut are hereby
quashed qua to applicants nos. 2 to 8( Smt.
Rasheeda, Rashid, Kari Sajid, Khadija,
Maulana,
Muhammadi,
Ummehani).
However, trial will proceed further against
applicant no.1 only for above referred
offences and till date if he has not
surrendered, it is directed that he will
surrender before trial Court within 4 weeks
from today and in case any application for
bail is filed, the same shall be considered
expeditiously in accordance with law and
taking note of judgment passed by Supreme
Court in Satender Kumar Antil vs. CBI,
(2021) 10 SCC 773.

23. Application is partly allowed.

24. Registrar (Compliance) to take
steps.
----------
(2024) 7 ILRA 593
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2024

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.
Application U/S 482. No. 29862 of 2019

Mohd. Mohsin ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Amit Daga, Vivek Kumar Singh

Counsel for the Opposite Parties:
G.A., Surya Pratap Singh Parmar

Criminal Law - Application under Section
482 CrPC- Proceedings under Section 138 NI
Act- under challenge- cheque issued by the
applicant dishonoured
due to "insufficient
funds"- cheque dishonoured for the reason
being referred to the drawer- covered under
Section 138 NI Act- documents sent through
registered post- presumed to have been served
after the expiry of 30 days- Section 27 of the
General Clauses Act- Complaint has to be filed
in the name of the payee of the cheque-not his
power of attorney holder- no cause of action
arose in favour of opposite party on the basis of
presumption of notice- proceedings of criminal
complaint quashed- application allowed. (Paras
16, 17, 19, 20 and 21)

HELD:
Thus, from the specific judgments in the cases
of Electronics Trade &Technology Development
Corpn.
Ltd.,
Secunderabad
(supra),
K.K.
Sidharthan(supra) and Modi Cements Ltd.
(supra), the dishonour of cheque for the
reasons 'referred to the drawer' is fully covered
under the provision of Section 138 of N.I. Act,
1881. Therefore, the submission in this regard
made by learned counsel for the applicant is not
sustainable. (Para16)

So far as the other issue with regard to service
of notice is concerned, theoffence under Section
138 of N.I. Act, 1881, shall be constituted only
upon the service of legal notice on the drawer of
the cheque and after expiry of 15 days from
such service of notice. In the complaint, there is
no averment with regard to the fact that when
the notice has actually been served on the
application. Therefore, in view of provisions of
Section 27 of General Clauses Act, adocuments
sent through the registered post shall be
594 INDIAN LAW REPORTS ALLAHABAD SERIES
presumed to have been served after the expiry
of 30 days

Application allowed. (E-14)

List of Cases cited:-

1. Raj Kumar Khurana Vs St. of (NCT of Delhi)
& anr., (2009) 6 SCC 72

2. Subodh S. Salaskar Vs Jayprakash M. Shah &
anr., (2008) 13 SCC 689

3. A.C. Narayanan Vs St. of Mah. & anr., (2014)
11 SCC 790

4.Electronics Trade & Technology Development
Corpn.
Ltd.,
Secunderabad
Vs
Indian
Technologists& Engineers (Electronics) (P) Ltd.
& anr. (1996) 2 SCC 739

5.K.K. Sidharthan Vs T.P. Praveena Chandran &
anr. (1996) 6 SCC 369

6. Modi Cements Ltd. Vs Kuchil Kumar Nandi
(1998) 3 SCC 249

(Delivered by Hon'ble Anish Kumar Gupta, J.)

1. Heard Sri Amit Daga, learned counsel
for the applicant, Sri Priyansh Mishra,
Advocate holding brief of Sri Surya Pratap
Singh Parmar, learned counsel appearing for
opposite party No.2 and Sri Prem Prakash
Tiwari, learned AGA for the State.

2. The instant application under Section
482 Cr.P.C. has been filed to quash the
Criminal Complaint dated 14.1.2019 as well as
entire proceedings of Criminal Complaint Case
No.61
of
2019
(Nurul
Bashar
vs.
Mohd.Mohsin)
under
Section
138
of
Negotiable Instruments Act, 1881, Police
Station-Bhadohi, District-Bhadohi, pending
before the court of Chief Judicial Magistrate,
Bhadohi at Gyanpur.

3. The brief facts of the case are that
the firm M/s Evergreen Carpets is a
registered proprietorship firm and is
involved in the manufacturing, export and
sale of carpets. The applicant herein is the
proprietor of the firm M/s Universal
Carpets and used to purchase the carpets
from the M/s Evergreen Carpets. The firm
M/s Evergreen Carpets and the firm M/s
Universal Carpets, both are the sole
proprietorship firms. In connection with the
aforesaid business transaction between
them the firm M/s Universal Carpets has
purchased
the
carpets
worth
Rs.1,10,39,676/-. Against the aforesaid
purchase the Universal Carpets paid
Rs.71,00,000/- to M/s Evergreen Carpets
and the balance of Rs.39,39,676/- was due
against the Universal Carpets. When M/s
Evergreen Carpets demanded the balance
amount of Rs.39,39,676/-, a cheque no.
23944651
dated
20.9.2018
of
Rs.12,00,000/- of Jammu and Kashmir
Bank, Branch Bhadohi was issued by M/s
Universal Carpets in favour of M/s
Evergreen Carpets. The said cheque was
presented
for
encashment
by
M/s
Evergreen Carpets in its Bank, which was
dishonored on 21.11.2018 for the reason
'insufficient funds'. However, when it was
discussed with the proprietor of the M/s
Universal Carpets he asked to present the
said cheque after five days so that the same
can be honoured. Relying upon the
aforesaid assurance given by the M/s
Universal Carpets, M/s Evergreen Carpets
again presented the same cheque on
27.11.2018 which was again dishonored on
28.1.2018 for the reason 'insufficient
funds'.
Thereafter
on
19.12.2018,
a
registered
legal
notice
was
issued
demanding the cheque amount. Thereupon
a complaint under section 138 of the N.I.
Act has been filed on 14.1.2019 before the
C.J.M. Bhadohi. In the complaint there was
no assertion with regard to the fact that as
to when the registered legal notice was
7 All. Mohd. Mohsin Vs. State of U.P. & Anr.
595
actually served on the M/s Universal
Carpets.
The
said
complaint
dated
14.1.2019 has been filed by one Nurul
Basar in his own name alleging in the
opening paragraph of the said complaint
that he is working in the firm M/s
Evergreen Carpets as an Accountant and he
has been authorized to file the complaint.
Aggrieved by the aforesaid complaint
lodged by the said Nurul Basar, who was
the Accountant of M/s Evergreen Carpets,
the instant application under Section 482
Cr.P.C. has been filed by the Proprietor of
M/s Universal Carpets, namely, Mohd.
Mohsin.

4. Learned counsel for the applicant
has raised three broad submissions:

(i) In the instant case, cheque was
dishonoured for the reason 'referred to the
drawer'. Therefore, he submits that due to
aforesaid reason for dishonour of cheque is
not covered within the provisions of
Section 138 of N.I. Act, 1881. Hence, no
offence under Section 138 of N.I. Act is
made out against the applicant.

(ii) Learned counsel for the
applicant further submits that in the
complaint under Section 138, it has been
that the legal notice was issued on
19.12.2018
through
registered
post,
however, there is no assertion in the
complaint as well as in the statement of
complainant recorded under Section 200
Cr.P.C. that when such notice was served
on the applicant herein and if the Section
27 of the General Clauses Act, 1897 is
considered, the said notice shall be
presumed to have been served after the
expiry of 30 days, therefore, in the instant
complaint filed on 14.12019 is a premature
complaint and as no offence will be made
out unless the notice is served and after
service of notice, 15 days period has
expired.

(iii) It is further submitted that the
instant complaint case has been lodged by
the power of attorney holder of the payee
of the cheque in his own name, therefore,
the instant complaint is not maintainable
for that reason also.

5. With regard to the first submission,
learned counsel for the applicant has relied
upon the judgment of Apex Court in Raj
Kumar Khurana vs. State of (NCT of
Delhi) and another, (2009) 6 SCC 72.
With regard to the second submission, he
has relied upon the judgment of Apex
Court
in
Subodh
S.
Salaskar
vs.
Jayprakash M. Shah and another, (2008)
13 SCC 689 and in support of the third
submission,
learned
counsel
for
the
applicant has relied upon the judgment of
Apex Court in A.C. Narayanan vs. State of
Maharashtra and another, (2014) 11 SCC
790.

6.

In
view
of
the
aforesaid
submissions and the judgments of the Apex
Court, learned counsel for the applicant has
prayed for quashing of the aforesaid
complaint case against the applicant.

7. Per contra, learned counsel for the
opposite party No.2 has submitted that once
the cheque is issued by the drawer of the
cheque and the same is dishonoured by the
Bank, the offence under Section 138 of N.I.
Act, 1881, is constituted. He further submits
that since the notice was sent through the
registered post, it has to be presumed to have
been served in due course. Further, relying
upon the judgment of A.C. Narayanan
(supra), he has submitted that the power of
attorney is authorized to file the complaint on
behalf of its principal.
596 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Having heard the rival submissions
raised by learned counsel for the parties,
this Court has carefully gone through the
record of the case and from the record, it is
reflected that in the instant case, the cheque
was allegedly issued by the applicant on
20.9.2018 for an amount of Rs.12 lakhs,
which was presented before the Bank and
the same was dishonoured for the reason
'referred to the drawer' thereupon a legal
notice dated 19.12.2018 was sent through
the registered post on 19.12.2018 and when
no payment was made in compliance of the
aforesaid
notice
on
14.1.2019,
the
complaint case was filed.

9. With regard to the first submission
advanced by learned counsel for the
applicant, it would be relevant to refer the
provisions of Section 138 of the N.I. Act,
1881, which reads as under:

"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 provision 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 of other liability means
a legally enforceable debt or other
liability."

10. In view of the aforesaid
provisions, the offence under Section 138
of N.I. Act, 1881, shall be attracted only
when a cheque is returned by the Bank
unpaid for the reasons;

(i) because of the amount of
money standing to the credit of that account
is insufficient to honour the cheque, or

(ii)
it
exceeds
the
amount
arranged to be paid from that account by an
agreement made with that bank.

11. In Raj Kumar Khurana (supra),
the Apex Court has held as under:

"11. Section 138 of the Act
moreover provides for a penal provision. A
penal provision created by reason of a
legal
fiction
must
receive
strict
construction (See R. Kalyani v. Janak C.
7 All. Mohd. Mohsin Vs. State of U.P. & Anr.
597
Mehta and DCM Financial Services Ltd v.
J.N. Sareen). Such a penal provision,
enacted in terms of the legal fiction drawn
would be attracted when a cheque is
returned by the bank unpaid. Such nonpayment may either be:

(i) because of the amount of
money standing to the credit of that
account is insufficient to honour the
cheque, or

(ii)
it
exceeds
the
amount
arranged to be paid from that account by
an agreement made with that bank.

Before a proceeding thereunder
is initiated, all the legal requirements
therefor must be complied with. The court
must be satisfied that all the ingredients of
commission of an offence under the said
provision have been complied with.

12. The parameters for invoking the
provisions of Section 138 of the Act, thus,
being limited, we are of the opinion that
refusal on the part of the bank to honour the
cheque would not bring the matter within
the mischief of the provisions of Section
138 of the Act.

13. The court while exercising its
jurisdiction for taking cognizance of an
offence under Section 138 of the Act was
required to consider only the allegations
made in the complaint petition and the
evidence of the complainant and his
witnesses, if any. It could not have taken
into consideration the result of the
complaint petition filed by the respondent
No. 2 or the closer report filed by the
Superintendent of Police in the First
Information Report lodged by the appellant
against him."

12. So far as the controversy with
regard to dishonour of the cheque for the
reasons
'referred
to
the
drawer'
is
concerned, it has been specifically dealt
with by a Division Bench of the Supreme
Court in the case of Electronics Trade &
Technology Development Corpn. Ltd.,
Secunderabad Vs. Indian Technologists &
Engineers (Electronics) (P) Ltd. and
another (1996) 2 SCC 739 wherein it has
been categorically held by the Apex Court
that if the cheques were dishonoured for the
reasons (i) referred to the drawer; (ii)
instructions for stoppage of payment and
stamped; (iii) exceeds agreement, all those
conditions are to be covered within the
meaning of Section 138 of N.I. Act, 1881,
the relevant paragraph 5 of the said
judgment is reproduced below:

"5. It would thus be clear that
when a cheque is drawn by a person on an
account maintained by him with the banker
for payment of any amount of money to
another person out of the account for the
discharge of the debt in whole or in part or
other liability is returned by the bank with the
endorsement like (l) in this case, "refer to the
drawer" (2) "instructions for stoppage of
payment"
and
stamped
(3)
"exceeds
arrangement", it amounts to dishonour within
the meaning of Section 138 of the Act. On
issuance of the notice by the payee or the
holder in due course after dishonour, to the
drawer demanding payment within 15 days
from the date of the receipt of such a notice, if
he does not pay the same, the statutory
presumption of dishonest intention, subject to
any other liability, stands satisfied."

13. The aforesaid view has further
been affirmed by a Division Bench of the
Apex Court in the case of K.K. Sidharthan
Vs. T.P. Praveena Chandran and another
(1996) 6 SCC 369 and held in paragraph 2
as under:

"2...................
598 INDIAN LAW REPORTS ALLAHABAD SERIES

This shows that Section 138 gets
attracted in terms if cheque is dishonoured
because of insufficient funds or where the
amount exceeds the arrangement made
with the bank. It has, however, been held by
a Bench of this Court in Electronics Trade
and Technology Development Corpn. Ltd.
v. Indian Technologists and Engineers
(Electronics (P) Ltd., that even if a cheque
is dishonoured because of " stop payment"
instruction to the bank, Section 138 would
get attracted."

14. The said view taken by the Apex
Court in the case of Electronics Trade and
Technology Development Corpn. Ltd.
(supra) has further been upheld by a Three
Judge Bench of the Apex Court in the case
of Modi Cements Ltd. V. Kuchil Kumar
Nandi (1998) 3 SCC 249 and in paragraph
16 the Apex Court has held as under:

"16. We see great force in the
above submission because once the cheque
is issued by the drawer a presumption
under Section 139 must follow and merely
because the drawer issues a notice to the
drawee or to the bank for stoppage of the
payment it will not preclude an action
under section 138 of the Act by the drawee
or the holder of a cheque in due cours. The
object of Chapter XVII, which is intituled
as "OF PENALTIES IN CASE OF
DISHONOUR OF CERTAIN CHEQUES
FOR INSUFFICIENCY OF FUNDS IN
THE ACCOUNTS" and contains Sections
138 to 142, is to promote the efficacy of
banking
operations
and
to
ensure
credibility in transacting business through
cheques. It is for this reason we are of the
considered view that the observations of
this
Court
in
Electronics
Trade
&
Technology Development Corpn. Ltd. In
paragraph 6 to the effect " suppose after
the cheque is issued to the payee or to the
holder in due course and before it is
presented for encashment, notice is issued
to him not to present the same for
encashment and yet the payee or holder in
due course presents the cheque to the bank
for payment and when it is returned on
instructions, Section 138 does not get
attracted", do not fit in with the object and
purpose for which the above chapter has
been brought on the statute-book."

15. The judgement of the Apex Court
in the case of Raj Kumar Khurana
(supra) which has been highly relied upon
by the learned counsel for the applicant, in
view of the previous binding precedent of
the Apex Court and specifically which has
been duly approved by the Three Judges
Bench of the Apex Court in the case of
Modi Cements (supra), in the considered
opinion of this Court, the judgements relied
upon by the learned counsel for the
applicant is per in-curium, in view of the
judgement of Three Judges Bench in the
case of Modi Cements (supra).

16. Thus, from the specific judgments
in the cases of Electronics Trade &
Technology Development Corpn. Ltd.,
Secunderabad (supra), K.K. Sidharthan
(supra) and Modi Cements Ltd. (supra),
the dishonour of cheque for the reasons
'referred to the drawer' is fully covered
under the provision of Section 138 of N.I.
Act, 1881. Therefore, the submission in this
regard made by learned counsel for the
applicant is not sustainable.

17. So far as the other issue with
regard to service of notice is concerned, the
offence under Section 138 of N.I. Act,
1881, shall be constituted only upon the
service of legal notice on the drawer of the
cheque and after expiry of 15 days from
such service of notice. In the complaint,
7 All. Mohd. Mohsin Vs. State of U.P. & Anr.
599
there is no averment with regard to the fact
that when the notice has actually been
served on the applicant herein. Therefore,
in view of provisions of Section 27 of
General Clauses Act, a documents sent
through the registered post shall be
presumed to have been served after the
expiry of 30 days.

18. In Subodh S. Salaskar (supra),
the Apex Court has held as under with
regard to service of a document through
post:

"22. In terms of the provisions of
the General Clauses Act, a notice must be
deemed to have been served in the ordinary
course subject to the fulfillment of the
conditions laid down therein. Section 27 of
the General Clauses Act reads as under:

"27. Meaning of service by post. -
Where any Central Act or Regulation made
after the commencement of this Act
authorises or requires any document to be
served by post, whether the expression
'serve' or either of the expression 'give' or
'send' or any other expression is used, then,
unless a different intention appears, the
service shall be deemed to be effected by
properly addressing, prepaying and posting
by registered post, a letter containing the
document, and, unless the contrary is
proved, to have been effected at the time at
which the letter would be delivered in the
ordinary course of post."

23. Thirty days' time ordinarily
must be held to be sufficient for service of
notice. In fact when the service of notice is
sought to be effected by Speed Post,
ordinarily the service takes place within a
few days. Even under Order V, Rule 9(5) of
the Code of Civil Procedure, 1908,
summons is presumed to be served if it does
not come back within thirty days. In a
situation of this nature, there was no
occasion for the Court to hold that service
of notice could not be effected within a
period of thirty days."

19. In view thereof, in the instant
case, legal notice was sent on 19.12.2018,
therefore, for want of any specific averment
and proof of service, if the presumption of
service of notice in reasonable time is
raised, it should be deemed to have been
served at best within a period of 30 days,
from the date of its post i.e. 17.1.2019.
However, in the instant case, the complaint
itself has been filed on 14th January, 2019.
Thus, prima facie on 14.1.2019, no offence
under Section 138 of N.I. Act, 1881, was
attracted as after presumed service on
17.1.2019 still 15 days were required for
response by applicant. The opposite party
No.2 was still required to wait for another
15 days. Therefore, no offence under
Section 138 of N.I. Act, 1881, was made
out against the applicant on the relevant
date when the complaint was filed.

20. Further, the complaint has been
filed by the power of attorney holder in his
own name. Though the payee of the cheque
can maintain a complaint through the
power of attorney holder, but such
complaint ought to have been filed in the
name of payee of the cheque as has also
been held in the case of A.C. Narayanan
(supra), which has been relied upon by
both the parties. In paragraph 31 of the said
judgment, the Apex Court has held as
under:

"31. In view of the discussion, we
are of the opinion that the attorney holder
cannot file a complaint in his own name as
if he was the complainant, but he can
initiate criminal proceedings on behalf of
his principal. We also reiterate that where
600 INDIAN LAW REPORTS ALLAHABAD SERIES
the payee is a proprietary concern, the
complaint can be filed:

(i) by the proprietor of the
proprietary concern, describing himself as
the sole proprietor of the "payee";

(ii)
the
proprietary
concern,
describing itself as a sole proprietary
concern, represented by its sole proprietor;
and

(iii)
the
proprietor
or
the
proprietary concern represented by the
attorney holder under a power of attorney
executed by the sole proprietor."

21. Since in the instant case, the
complaint has been filed by the power of
attorney holder in his own name and not as
the power of attorney holder of the payee
of the cheque and further no offence under
Section 138 of N.I. Act, 1881, is
constituted in view of the failure of the
applicant to make assertion with regard to
service of notice and on the basis of
presumption of service after expiry of 30
days of its sending through registered post,
no cause of action has ever arisen to
opposite party No.2 to maintain the instant
complaint.

22. Therefore, for all the reasons
recorded
herein
above,
the
instant
application under Section 482 Cr.P.C. is
allowed and the entire proceedings of
Criminal Complaint Case No.61 of 2019
(Nurul Bashar vs. Mohd.Mohsin) under
Section 138 of Negotiable Instruments Act,
1881, Police Station-Bhadohi, DistrictBhadohi, pending before the court of Chief
Judicial Magistrate, Bhadohi at Gyanpur,
are hereby quashed.
----------
(2024) 7 ILRA 600
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/S 482. No. 47176 of 2023

Saida ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Arvind Prabodh Dubey, Naushad Alam

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 201, 202, 203,
204 & 482 - Indian Penal Code, 1860 -
Sections -376-D, 452 & 506: - Application
U/s 482 - FIR - lodged by applicant against
proposed accused - investigation - final report
- accepted by trial court - controversy is in
regard to an affidavit purportedly filed by
applicant herself that she did not want to
oppose final report - order by which the trial
court accepted final report is passed on the
basis of material available and not much being
influenced by an alleged affidavit - against
which a revisional is still pending - present case
is arising out of an application filed by applicant
u/section 156(3) Cr.P.C. that above purported
affidavit of applicant was not sworn by her and
she did not put her thumb impression against
proposed accused - whom were imposted a
woman declaring herself to be applicant who
shorn that affidavit - instead of giving direction
to lodge an FIR the learned CJM considered her
application to be a complaint and directed for
recording of St.ment of the complainant u/
section 202 Cr.P.C. - being aggrieved with the
observation of trial court that all the facts are
within the knowledge of applicant, therefore, no
need to lodge FIR - court finds that, trial court
has not appreciated contents of complaint in its
correct perspective and failed to consider that
contents of complaint and allegation show prima
facie that a serious offence has been committed
by proposed accused persons - as such, bare
facts indicate that it requires police investigation