# Omkar Lohiya v. State of U.P. & Anr

- **Citation:** (2023) 7 ILRA 148
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-21
- **Case number:** Application U/S 482 No. 6136 of 2023
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/omkar-lohiya-v-state-of-u-p-anr-50390
- **Pages:** 4

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 200, 202 & 482 -
Negotiable
Instrument
Act,
1881
-
Section 138: - Application U/s 482 - for
quashing the summoning order as well as
entire proceedings - complaint - filed by the
opposite party no. 2 u/s 138 NI Act, - -
offence
of
Cheating
and
dishonesty
-
dishonour of cheques on the ground that
'Drawer signature Differ' - summoning order
- court feels that, the structural defect in the
cheque issued by any drawer may have
several
reasons,
which
may
either
be
bonafide, unintentional or be dishonest and
malafide - the difference in signature and
incomplete signature is none of several
categories of structural defects and the
reason of such structural defect is a matter of
trial and is required to be adjudged after
appreciation of the evidence - applicant has
taken plea of such structural defect just to
get rid of his criminal liability by seeking
quashment of impugned order in question
without making any plea about non-liability of
amount to make payment or the plea of any
debt or other liability of complainant to rebut
the stand of complainant - held, complaint u/s
138 NI Act, cannot be quashed by high court
by taking recourse to section 482 Cr.P.C., if
disputed questions of facts are involved which
need to be adjudicated after respective
evidence is led by the parties before the trial
court - accordingly, application is dismissed.
(Para - 10, 11, 12)

Application u/s 482 dismissed. (E-11)

List of Cases cited:

## Text

148 INDIAN LAW REPORTS ALLAHABAD SERIES

34. The amount of compensation to
which the claimants have been awarded
shall be deposited by the Insurance
Company within a period of three months
before the learned tribunal. Thereafter the
learned tribunal shall release the amount to
the claimants without delay. The amount
already disbursed to the claimants (if any)
shall be adjusted.

35. The amount deposited by the
appellant before this Court shall be
transmitted to the learned trial court which
shall release the same in favour of the
claimants.
----------
(2023) 7 ILRA 148
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.04.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 6136 of 2023

Omkar Lohiya ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rakesh Kumar Srivastava

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 200, 202 & 482 -
Negotiable
Instrument
Act,
1881
-
Section 138: - Application U/s 482 - for
quashing the summoning order as well as
entire proceedings - complaint - filed by the
opposite party no. 2 u/s 138 NI Act, - -
offence
of
Cheating
and
dishonesty
-
dishonour of cheques on the ground that
'Drawer signature Differ' - summoning order
- court feels that, the structural defect in the
cheque issued by any drawer may have
several
reasons,
which
may
either
be
bonafide, unintentional or be dishonest and
malafide - the difference in signature and
incomplete signature is none of several
categories of structural defects and the
reason of such structural defect is a matter of
trial and is required to be adjudged after
appreciation of the evidence - applicant has
taken plea of such structural defect just to
get rid of his criminal liability by seeking
quashment of impugned order in question
without making any plea about non-liability of
amount to make payment or the plea of any
debt or other liability of complainant to rebut
the stand of complainant - held, complaint u/s
138 NI Act, cannot be quashed by high court
by taking recourse to section 482 Cr.P.C., if
disputed questions of facts are involved which
need to be adjudicated after respective
evidence is led by the parties before the trial
court - accordingly, application is dismissed.
(Para - 10, 11, 12)

Application u/s 482 dismissed. (E-11)

List of Cases cited:

1. Messrs. Laxmi Dyechem Vs St. of Guj. &
ors.(2012) 13 SCC 375),

2. CC Alavi Haji Vs Palapetty Muhammed &
anr.(2007) 6 SCC 555),

3. Ajeet Seeds Ltd. Vs K. Gopala Krishnaiah,
(2014) 12 SCC 685),

4.
Bharat
Barrel
&
Drum
Manufacturing
Company Vs Amin Chand Payarelal (1999) 3
SCC 35),

5. Basalingappa Vs Nudibasappa (2019) 5 SCC
418),

6. Kishan Rao Vs Shankargauda (2018) 8 SCC
165),

7. Ranjit Vs St. of U.P. & anr.(Application u/s 482
no. 47282/2019 decided on 31.01.2020),

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)
7 All. Omkar Lohiya Vs. State of U.P. & Anr.
149

1.

Heard
Mr.
Rakesh
Kumar
Srivastava,
learned
counsel
for
the
applicant, Mr. K.P. Pathak, learned AGA
for the State and perused the records.

2. The present application under
Section 482 Cr.P.C. has been filed to quash
the summoning order dated 30.01.2020 as
well as the entire proceedings of Complaint
Case No.08 of 2020, (Netrapal Awana vs.
Omkar Lohiya), under Section 138 of
Negotiable Instruments Act, 1881, Police
Station-Phase-II NOIDA, District-Gautam
Buddh Nagar, pending in the Court of the
Additional Court No.3, Gautam Buddha
Nagar.

3. Brief facts of the case are that the
opposite party no.2 filed a complaint under
Section 138 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as 'the
Act') against the applicant stating therein
that the applicant and opposite party no.2
are known to each other and on 10.06.2018,
the applicant came to the house of opposite
party no.2 and requested for Rs.10 lacs,
which was needed by him. The aforesaid
amount was given to him on 20.06.2018 by
the opposite party no.2 with a condition
that the same will be returned by the
applicant within six months. Thereafter, in
December, 2018, when the opposite party
no.2 asked the applicant to return the
money, the applicant had issued a cheque of
Rs.10,00,000/-
from
Allahabad
Bank,
Branch-Bhangel,
Phase-II
NOIDA,
Gautambuddha Nagar, bearing cheque
no.035621 dated 16.07.2019 in favour of
opposite party no.2. On receipt of the same,
opposite party no.2 has presented the same
before the concerned Bank for encashment
on
16.07.2019,
but
the
same
was
dishonoured due to "Drawer Signature
Differ" on 17.07.2019. The aforesaid
information was given to the applicant by
the opposite party no.2, but the applicant
refused to return the amount as taken by
him
from
the
opposite
party
no.2.
Thereafter, opposite party no.2 sent a legal
notice to the applicant on 26.07.2019
through registered post, which has been
received by the applicant on 27.07.2019.
After the notice neither any amount was
paid nor reply was submitted by the
applicant, therefore, the present compliant
has
been
filed
on
21.08.2019.
Subsequently, the learned Magistrate after
recording the statement under Sections 200
and 202 Cr.P.C. summoned the applicant
vide order dated 30.01.2020, under Section
138 of the Act.

4. Learned counsel for the applicant
submits that the applicant is innocent and
has been falsely implicated in the present
case. He disputed the signature on the
cheque and stated that no such cheque was
given by the applicant to the opposite party
no.2, hence the ingredients of complaint
under Section 138 N.I. Act are missing and,
therefore, the proceedings are clearly not
maintainable
under
the
Negotiable
Instruments Act, 1881. He further submits
that another cheque for the same amount,
which has been placed at page 43 bearing
different signature, has been placed before
the bank and dishonoured, for which
another complaint has also been lodged.
Thus, the summoning order as well as the
entire proceedings is liable to be quashed.

5. On the other hand, Mr. K.P. Pathak,
learned AGA for the State, has submitted
that the difference in signature of the
applicant in the cheque very well make out
the offence u/s 138 N.I. Act as the Apex
Court in the case of Messrs. Laxmi
Dyechem vs. State of Gujarat and others
reported in (2012) 13 SCC 375 has held
that
any
such
technical
reason
or
150 INDIAN LAW REPORTS ALLAHABAD SERIES
endorsement of Bank for dishonour of
cheque does not affect/disqualifies the
prosecution under section 138 N.I. Act and
would constitute the offence u/s 138 N.I.
Act.
He
further
submits
that
the
summoning order passed by the concerned
Magistrate is legal and just in the eyes of
the law and at this stage, only a prima facie
case is to be seen and the complaint cannot
be thrown at the threshold. He further
submits that in case, cheque is disputed, the
same can be seen at the time of trial. The
cheque placed at page 43 pertains to
different cheque number and different
transaction, therefore, another complaint
under Section 138 N.I. Act has been filed
as permitted under the law. Therefore, the
present
application
is
liable
to
be
dismissed.

6. I have carefully considered the
submissions advanced by learned counsel
for the parties and have also gone through
the material available on record.

7. Before proceedings further, it is
apposite to give reference of some
judgments of the Apex Court as well as this
Court, wherein the Apex Court has laid
down the guideline for quashing of
criminal proceedings arising out of Section
138 of N.I. Act, which are as follows:-

i) C.C. Alavi Haji Vs. Palapetty
Muhammed and Another, reported in
(2007) 6 SCC 555;

ii) Ajeet Seeds Ltd. vs. K. Gopala
Krishnaiah, reported in 2014 12 SCC 685;

iii) Bharat Barrel & Drum
Manufacturing
Company
Vs.
Amin
Chand Pyarelal, reported in (1999) 3 SCC
35;

iv)
Basalingappa
Vs.
Mudibasappa reported in (2019) 5 SCC
418;

v)
Kishan
Rao
Vs.
Shankargouda, (2018) 8 SCC 165;

vi) Ranjit vs. State of U.P. and
another decided on 31.01.2020 passed in
Application U/s 482 No. 47282 of 2019.

9. The law regarding the issue where
drawer's signature was incomplete or
differing signature has been dealt by the
Apex Court in the case of Laxmi Dyechem
Vs. State of Gujrat and others reported in
(2012) 13 SCC 375, wherein it has been
held that in case the cheque has been
dishonoured on account of "drawer's
signature differs", it shall also be a
punishable offence and attract to the
criminal proceedings under section 138 of
the Negotiable Instrument Act.

10. In view of the settled legal
position, as noticed above, it is clear that at
this stage, only a prima facie case is to be
seen and the complaint cannot be thrown at
the threshold. The Court feels that the
structural defect in the cheque issued by
any drawer may have several reasons,
which
may
either
be
bonafide,
unintentional or be dishonest and malafide.
It would be very unreasonable to say that
the receiver of any cheque issued by any
drawer should first ensure as to whether
there is any structural defect in the cheque
or not and further to ensure as to whether
such structural defect is an out come of
either of the aforesaid reasons. Such
structural defects can in most cases come to
the knowledge of receiver of the cheque,
when the same is returned by the Bank as
dishonoured
with
an
endorsement
mentioning reasons for its dishonour. The
difference in signatures and incomplete
signature is one of several categories of
structural defects and the reason of such
structural defect is a matter of trial and is
7 All. Juvenile-X Vs. State of U.P. & Anr.
151
required to be adjudged after appreciation
of the evidence.

11. In the present matter, the applicant
has taken plea of such structural defect just
to get rid of his criminal liability by
seeking quashment of impugned order in
question without making any plea about the
non-liability of amount to make payment or
the plea of any debt or other liability of
complainant
to
rebut
the
stand
of
complainant.

12. It is well settled that for the
purpose of quashing of a complaint, the
High Court cannot look into the defence of
the accused. The Court is only required to
see whether on the basis of the averments
made in the complaint and the relevant
particulars produced by the complainant,
there are grounds for proceeding against
the accused. Inherent power of quashing
criminal proceedings U/s 482 Cr.P.C.
should be exercised very sparingly and
with great circumspection. It does not
confer on the court to act arbitrarily as per
its own whims and caprice. At this stage,
the Courts could not have gone into the
merits and reached a conclusion that there
are no existing debt or liability and quash
the complaint. Therefore, the basic law is
that the complaint under Section 138 of
Negotiable Instrument Act cannot be
quashed by High Court by taking recourse
to Section 482 Cr.P.C, if disputed questions
of facts are involved which need to be
adjudicated after respective evidence is led
by the parties before the trial court

13. On the basis of discussions made
herein above, this Court finds that there is
no illegality or infirmity in the summoning
order dated 30.01.2020 passed by the
concerned court below. Therefore, the
prayer
for
quashing
the
impugned
summoning order as well as the entire
proceedings of the aforesaid case are
refused, as I do not see any abuse of the
court's process at this pre-trial stage.

14. In view of the aforesaid, the
application is, accordingly, dismissed.
----------
(2023) 7 ILRA 151
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2023

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Application U/S 482 No. 6596 of 2023

Juvenile-X ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Sushil Shukla, Sri Aditya Prakash Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Section 482 - Indian Penal Code,
1860 - Sections 120-B, 419, 420, 467, 468
& 471 - Juvenile Justice (Care and
Protection of Children) Act, 2015 - Section
- 18(3): - Application U/s 482 - for quashing
the impugned order as well as for a direction to
the learned magistrate to transferred the case
before Juvenile Justice Board - FIR, against
unknown persons - offence of cheating by
impersonation - investigation - Recovery -
charge-sheet
against
either
persons
-
cognizance drawn against all the accused
persons
-
Applicant
moved
regular
Bail
application claiming juvenile - court held that, -
at the time of commission of alleged offence
applicant was about 16 years old and he was
declared as juvenile by the order passed by the
learned Juvenile Justice Board and therefore the
magistrate concerned is directed to send the file
of the instant case to the Juvenile Justice