# Mohd. Yunus Malik v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 44
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-17
- **Case number:** Application U/S 482 No. 41434 of 2022
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-yunus-malik-v-state-of-u-p-anr-50666
- **Pages:** 4

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - The Negotiable Instruments Act,
1881 - Section 138 - Dishonour of
cheque for insufficiency, etc., of funds in
the account, Section 142 - Cognizance of
offences , Section 146 - Bank's slip
prima facie evidence of certain facts - In
case cheque return memo is not having
signature and stamp of the bank, but it
is validly issued by the bank, that would
not render the proceeding of Section
138
of
Act,
1881
as
invalid
or
illegal.(Para-13,14)

Complaint case was filed by opposite party no.2
under Section 142 - ground - bouncing of
cheque - no official mark, signature and seal of
the Bank - in absence of seal or signature, letter
cannot be treated valid document - cognizance
order passed - bad and liable to quashed -
hence application. (Para-3)

HELD:-Letter is not forged document and
cheque was produced before the Bank and
dishonoured due to insufficient fund, therefore,
requirement of Section 146 of Act is fulfilled .
Unsigned letter so issued by the Bank cannot be
ground for rejecting the proceedings under
Section 138 of Act, 1881. (Para -11)
8 All. Mohd. Yunus Malik Vs. State of U.P. & Anr.
45
Application u/s 482 Cr.P.C. dismissed. (E-7)

List of Cases cited:-

Guneet Bhasin Vs St. of NCT of Delhi & ors. ,
(2023) 296 DLT 401

## Text

44 INDIAN LAW REPORTS ALLAHABAD SERIES
doubt that an offence under Section 506
IPC, if committed in the State of U.P. is a
cognizable offence.

15. Therefore, the contention of the
learned counsel for the applicants/accused
has been charged with commission of noncognizable offences only based on the
decisions in cases of Santosh Kumar and
2 Others vs. State of U.P. And Another,
Anurag Yadav And 2 Ors. vs. State of
U.P. And Anr and Rama Shankar
Upadhayay And 3 Others vs. State of
U.P.
And
Another
(Supra),
is
misconceived as in the aforesaid cases, the
accused had been charged with offence
under Sections 323, 504 and 427 IPC,
which are non-cognizable offences whereas
in the instant case, the applicants have been
charged with the offences under Sections
504 and 506 IPC, one of which, i.e. the
offence under Section 506 is a cognizable
offence.

16. It is expressly provided in SubSection 4 of Section 155 Code of Criminal
Procedure that

"Where a case relates to two or
more offences of which at least one is
cognizable, the case shall be deemed to be
a cognizable case, notwithstanding that the
other offences are non-cognizable."

17. In view of the aforesaid
provisions of law, since the accused had
been charged under Sections 504 and 506
IPC, they have to be tried for both the
offences in the manner prescribed for trial
of cognizable offences.

18. Therefore, the application lacks
merit and it is accordingly rejected.
----------
(2023) 8 ILRA 44
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.07.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Application U/S 482 No. 41434 of 2022

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

Counsel for the Applicant:
Sri Anwar Hussain

Counsel for the Opposite Parties:
G.A., Sri Pawan Kumar Shukla, Sri Manish
Trivedi

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - The Negotiable Instruments Act,
1881 - Section 138 - Dishonour of
cheque for insufficiency, etc., of funds in
the account, Section 142 - Cognizance of
offences , Section 146 - Bank's slip
prima facie evidence of certain facts - In
case cheque return memo is not having
signature and stamp of the bank, but it
is validly issued by the bank, that would
not render the proceeding of Section
138
of
Act,
1881
as
invalid
or
illegal.(Para-13,14)

Complaint case was filed by opposite party no.2
under Section 142 - ground - bouncing of
cheque - no official mark, signature and seal of
the Bank - in absence of seal or signature, letter
cannot be treated valid document - cognizance
order passed - bad and liable to quashed -
hence application. (Para-3)

HELD:-Letter is not forged document and
cheque was produced before the Bank and
dishonoured due to insufficient fund, therefore,
requirement of Section 146 of Act is fulfilled .
Unsigned letter so issued by the Bank cannot be
ground for rejecting the proceedings under
Section 138 of Act, 1881. (Para -11)
8 All. Mohd. Yunus Malik Vs. State of U.P. & Anr.
45
Application u/s 482 Cr.P.C. dismissed. (E-7)

List of Cases cited:-

Guneet Bhasin Vs St. of NCT of Delhi & ors. ,
(2023) 296 DLT 401

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Anwari Hussain, learned
counsel for the applicant, learned AGA for
the State-opposite party no.1, Sri Pawan
Kumar Shukla, learned counsel for the
opposite party no.2 and Sri Manish Trivedi,
learned counsel for the ICICI-Bank.

2. The present 482 Cr.P.C. application
has been filed to quash the entire
proceedings of Criminal Complaint Case
No. 36644 of 2022 (Anuj Kumar Gupta vs.
Mohd. Yunus Malik) under Section 138 of
Negotiable
Instrument
Act,
1881
(hereinafter referred to as Act, 1881) as
well as summoning order dated 20.6.2022.

3. Learned counsel for the applicant
submitted that complaint case was filed by the
opposite party no.2 under Section 142 of Act,
1881 on the ground of bouncing of cheque. He
next submitted that alongwith complaint, letter
of Bank dated 20.4.2022 has also been annexed
having no seal or signature. He firmly
submitted that in absence of seal or signature,
letter cannot be treated as valid document. He
further submitted that relying upon such letter,
cognizance order has been passed, which is bad
and liable to quashed.

4. Per contra, Sri Pawan Kumar Shukla,
learned counsel for the opposite party no.2
has opposed and submitted that he has
received the very same letter from the bank
and on that basis and he has filed complaint
alongwith said letter, therefore, he is not at
fault in all eventuality. He further submitted
that if the cheque and letter are not bearing
any official stamp of the bank, it does not
render the said letter as invalid or illegal. In
support of his contention, he has placed reliance
upon the judgment of Delhi Court in the case of
Guneet Bhasin vs. State of NCT of Delhi and
others reported in (2023) 296 DLT 401.

5. Earlier this Court vide order dated
4.7.2023 impleaded the ICICI Bank and
directed the bank to file counter affidavit.

6. In compliance of that, Sri Manish
Trivedi, learned counsel for the ICICI-Bank
has filed counter affidavit and clearly stated
that this letter was issued by the Bank, but
inadvertently, same could not be signed.
Further, bank has tendered unconditional
apology with the undertaking that bank
would be more conscious in future and such
mistakes shall not be repeated again.

7. Sri Anwar Hussain, learned counsel
for the applicant in his rejoinder argument
submitted that Section 146 of Act, 1881
clearly provides that notice of information of
dishonored cheque must have official mark
and in light of that no proceeding can be
initiated against the applicant.

8. I have considered the rival
submissions advanced by the learned
counsel for the parties and perused the
letter issued by the Bank.

9. The issue is before this Court about
the interpretation of Section 146 of Act,
1881, which is being quoted hereinbelow:-

"Section 146 in The Negotiable
Instruments Act, 1881

The Court shall, in respect of
every proceeding under this Chapter, on
production of bank's slip or memo having
thereon the official mark denoting that the
46 INDIAN LAW REPORTS ALLAHABAD SERIES
cheque has been dishonoured, presume the
fact of dishonour of such cheque, unless
and until such fact is disproved."

10. From perusal of the aforesaid
provision, the intention of legislation is
very much clear i.e. to verify the fact as to
whether the cheque was produced before
the Bank and dishonoured for some reasons
or not. So far as present case is concerned,
bank has informed that cheque was
dishonored due to 'Insufficient Funds', but
there is no official mark, signature and seal
of the Bank in the said letter dated
20.4.2022. Bank has filed counter affidavit
and clearly approved the letter and
submitted that inadvertently signed was left
out. Relevant paragraph of the counter
affidavit is quoted hereinbelow:-

"3. That the deponent very fairly
submits that the cheque presented by the
complainant Anuj Kumar Gupta was
presented for clearing in the ICICI Bank
which was sent to the clearing Bank and it
bounced on account of "Insufficient Funds"
and the bouncing memo dated 20.4.2022
was issued by the ICICI Bank and was sent
to the account holder by DTDC courier
vide POD No.5311190k which inadvertently
was left out to be signed.

4. That the aforesaid bouncing
memo was electronically generated as per
CTS guidelines where it clearly bears the
remark of "Insufficient Funds" however
inadvertence in issuing the memo is highly
regretted by the ICICI Bank and the bank
apologizes for the same and undertakes
that it will never happen in any future
transaction.

5. That the ICICI Bank being a
responsible law abiding and prudent bank
is issuing another bouncing memo of the
same date in order to regularize the
irregularity in issuing the bond memo and
further undertakes not be repeat its
inadvertent mistake in future. Photocopy of
the duplicate bouncing memo is being filed
herewith as Annexure-SCA 1 to this short
counter affidavit. (Original fresh bouncing
memo will be presented before this Hon'ble
Court at the time of hearing)."

11. Now in light of averments made
by the Bank in the counter affidavit, it is
very much clear that letter is not forged
document and cheque was produced before
the
Bank
and
dishonoured
due
to
insufficient fund, therefore, requirement of
Section 146 of Act is fulfilled and unsigned
letter so issued by the Bank cannot be
ground for rejecting the proceedings under
Section 138 of Act, 1881.

12. I have also perused the judgment
of Delhi Court in the case of Guneet
Bhasin (Supra). Relevant paragraph of the
said judgment is quoted hereinbelow:-

"9 The cheque return memo is a
memo informing the payee's banker and the
payee about the dishonour of a cheque.
When the cheque is dishonored, the drawee
bank immediately issues a cheque return
memo to the payee's banker mentioning the
reason for non-payment. The purpose of the
cheque return memo is to give the
information of the holder of the cheque that
his cheque on presentation could not be
encashed due to the variety of reasons as
mentioned in the cheque return memo. As
per the Section 146 of the N.I. Act, the
cheque return memo on presentation
presumed the fact of dishonour of the
cheque unless and until such fact is
disapproved. Neither section 138 nor the
Section 146 of the NI Act has prescribed
any particular from of cheque return memo.
The Section 138 of the NI Act does not
mandate any particular form of cheque
8 All. Dr. Rajni Tripathi Vs. State of U.P.
47
return memo which is nothing but a mere
information given by the Banker of the due
holder of a cheque that the cheque has
been returned as unpaid. If the cheque
return memo is not bearing any official
stamp of the bank, it does not render the
cheque return memo as invalid or illegal.
The cheque return memo is not a document
which is not required to be covered under
Section 4 of the Bankers Book (Evidence)
Act, 1891. If there is any infirmity in the
cheque return memo, it does not render
entire trial under Section 138 of NI Act as
nullity."

13. From perusal of the same, it is
apparently clear that if the cheque return
memo is not bearing any official stamp of
the bank, it does not render the cheque as
invalid or illegal. Further, if there is any
infirmity in the cheque or letter, it does not
render entire trial under Section 138 of Act,
1881 as nullity.

14. After going through the provision
of Section 146 of Act, 1881, counter
affidavit filed on behalf of bank and
judgment of Delhi Court in the case of
Guneet Bhasin (Supra), this Court is of the
firm view that in case cheque return memo
is not having signature and stamp of the
bank, but it is validly issued by the bank,
that would not render the proceeding of
Section 138 of Act, 1881 as invalid or
illegal.

15. In view of above facts mentioned
hereinabove as well as law discussed
hereinabove, this Court finds no good
ground to entertain the application and
same lacks merit and is, dismissed. No
order as to costs.

16. So far as bank is concerned, there
is carelessness on its part, therefore, this
Court is issuing direction to Highest
Authority of Bank i.e. CEO/M.D. of
ICICI., Bank to issue order/letter/circular to
all Branch Managers for being more careful
while issuing such letters maximum within
two weeks from the date of production of
certified copy of this order. In case such
type of mistake is repeated by any officer
of the Bank, he is directed to take strict
action
against
the
erring
officer
or
employee in accordance with law.

17. Sri Manish Trivedi, learned
counsel for the ICICI-Bank is directed to
send the copy of this order to CEO/M.D. of
ICICI Bank forthwith for immediate
compliance.
----------
(2023) 8 ILRA 47
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2023

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 8059 of 2023

Dr. Rajni Tripathi ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Ms. Kanchan Sharma, Sri Prashant Vyas, Sri
V.P. Srivastava (Sr. Adv.), Sri Virendra
Singh

Counsel for the Opposite Party:
G.A., Sri Prakash Dwivedi, Sri Amrendra
Nath Singh

Criminal Law - Indian Penal Code, 1860 -
Sections 419, 420, 467, 468, 471 & 204 -
Criminal Procedure Code, 1973 - Sections
313,
482,
438(6)(a)
&
(b)
&
439-
Anticipatory Application for Bail - the applicant,