# Padam Gupta v. State of U.P. and Anr

- **Citation:** (2013) 3 ILRA 1317
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-10-04
- **Case number:** Criminal Revision No. 446 of 2011
- **Bench:** Bharat Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/padam-gupta-v-state-of-u-p-and-anr-42696
- **Pages:** 6

## Headnote

section 200 and 202 passed impugned
order-offence u/s 138 of N.I. Act-without
ascertaining
the
correct
fact-revisionist
neither possess any accommodation nor had
occasion to issue cheque-in absence of
prospective accused-Magistrate require to
ensure precise and fair enquiry-impugned
order not reflect participation of revisionist
before the Magistrate impugned summoning
order quashed.

Held: Para-21
Thus, in view of the aforesaid legal
position,
it
is
incumbent
upon
Magistrates to ensure that the judicial
process should not be an instrument of
needless harassment. In complaint cases
no one is present to watch the interest of
prospective accused at initial stage.
Therefore, it is duty of the Magistrates to
ensure precise and fair enquiry in order
to arrive at reasonable conclusion. His
energetic participation at initial stage is
required in order to obviate or reduce
false implications. Impugned order does
not reflect required participation by the
Magistrate
before
summoning
the
revisionist to face the trial for the
offence under Section 138 of the N.I.
Act.

## Text

3 All] Padam Gupta Vs. The State of U.P. and Anr.
1317

16. In view of the above, this
revision is liable to be allowed, and is
hereby
allowed.
The
order
dated
4.10.2010 is set aside. The matter is
remanded back to the trial court for
deciding afresh the application under
Section 319 Cr.P.C. in the light of the
Apex Court decisions mentioned above.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2013

BEFORE
THE HON'BLE BHARAT BHUSHAN, J.

Criminal Revision No. 446 of 2011

Padam Gupta
 ...Petitioner
Versus
State of U.P. and Anr. ...Respondents

Counsel for the Petitioner:
Sri J.P. Pandey, Sri Saurabh Pathak

Counsel for the Respondents:
A.G.A., Sri B.M. Singh
Sri M.B. Singh, Sri Sudhanshu Kumar
Singh

Criminal Revision-Against summoning orderMagistrate after recording statement under
section 200 and 202 passed impugned
order-offence u/s 138 of N.I. Act-without
ascertaining
the
correct
fact-revisionist
neither possess any accommodation nor had
occasion to issue cheque-in absence of
prospective accused-Magistrate require to
ensure precise and fair enquiry-impugned
order not reflect participation of revisionist
before the Magistrate impugned summoning
order quashed.

Held: Para-21
Thus, in view of the aforesaid legal
position,
it
is
incumbent
upon
Magistrates to ensure that the judicial
process should not be an instrument of
needless harassment. In complaint cases
no one is present to watch the interest of
prospective accused at initial stage.
Therefore, it is duty of the Magistrates to
ensure precise and fair enquiry in order
to arrive at reasonable conclusion. His
energetic participation at initial stage is
required in order to obviate or reduce
false implications. Impugned order does
not reflect required participation by the
Magistrate
before
summoning
the
revisionist to face the trial for the
offence under Section 138 of the N.I.
Act.

(Delivered by Hon'ble Bharat Bhushan, J.)

1. This criminal revision is directed
against the order dated 26.10.2010 passed
by
learned
Addl.
Chief
Judicial
Magistrate Ist, Firozabad in Criminal
Complaint Case No. 4251 of 2010
(Surendra Kumar Jain Vs Padam Gupta)
under
Section
138
of
Negotiable
Instruments Act 1881 (in short N.I. Act),
P.S. Tundla, District Firozabad.

2. The facts of the case are that
opposite party no. 2/complainant lodged a
criminal complaint under Section 138 of
N. I. Act in the court of learned ACJM Ist,
Firozabad alleging therein that he was
tenant of a shop in a market situated at
Tundla Crossing, belonging to the father
of revisionist. It is alleged that some
portion of the market was demolished on
account
of
road
widening
and
constructions of four lane road by the
National Highway Authority. Revisionist
asked the complainant for vacating the
said shop, promising to restore back the
shop after reconstruction. It is also alleged
that the complainant was also paid Rs.
1,50,000/- as compensation for the period
of closure of the shop. The revisionist is
said to have drawn a cheque under his
signature being Cheque No. 622350 dated
20.6.2010 for Rs. 1,50,000/- in favour of
the complainant payable at SBI Branch
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
Tundla, District Firozabad. When the
complainant presented the said cheque in
his account No. 13652191003175 in
Oriental Bank of Commerce Branch at
Tundla, the same was returned to the
complainant on 21.7.2010 by the said
bank with an endorsement of 'insufficient
funds'. It is further alleged that the
complainant sent a statutory notice
through his advocate on 30.7.2010 but the
revisionist did not pay Rs. 1,50,000/-.

3.

Learned
Magistrate
after
recording
the
statement
of
the
complainant under Section 200 Cr.P.C.
and his witnesses under Section 202
Cr.P.C summoned the revisionist vide
order dated 26.10.2010 to face the trial for
the offence under Section 138 Negotiable
Instruments Act, 1988. It is against this
order, present revision has been filed.

4.

Learned
counsel
for
the
revisionist has challenged the impugned
summoning order on the ground that the
cheque in question was never issued by
the
revisionist
to
the
complainant.
Revisionist
did
not
have
legally
enforceable debt or other liability towards
complainant/opposite party no. 2 and the
present criminal proceeding has been
launched with an ulterior motive for
wreaking vengeance due to personal
grudge.

5. It is further submitted by the
learned counsel for the revisionist that the
revisionist runs a Saving Bank Account
No. 01170005721 in State Bank of India,
Agriculture Development Branch, Tundla
in District Firozabad and for operating
this account the Bank had issued a cheque
book bearing serial No. SBI00/329622341 to 622360 but the said cheque
book containing cheques from serial No.
622349 to 622360 was lost on 31.3.2010
while he was going to the Bank from his
house and written information in this
regard was given at Police Station Tundla,
District Firozabad on 31.3.2010 as well as
to the Branch manager, SBI (ADB)
Branch Tundla on 21.6.2010 with a
request not to make any payment in
respect of those cheques.

6. It is also submitted by learned
counsel for the revisionist that the said
lost cheque book was apparently found by
the complainant and by misusing the same
he presented the disputed cheque on
28.6.2010 in the revisionist's bank. He
submits that the revisionist does not own
any market complex or the disputed shop.
He has submitted that the essential
ingredients of section 138 of N.I. Act are
lacking
and
hence
the
impugned
summoning order is liable to be quashed.

7. Refuting the aforesaid submission
of learned counsel for the revisionist, it is
contended by learned counsel for the
complainant that the impugned order is
just and proper and there is no illegality,
irregularity or perversity in the impugned
order. It is further submitted by learned
counsel for the opposite party no. 2 that
complainant/opposite party no. 2 is the
tenant in the market of the revisionist's
father namely Sri Bodhanand since 1997
but due to his old age and infirmity the
revisionist was acting as care taker and
manager of the market. He further
submits that some portion of the market
was
demolished
by
the
National
Highways Authority of India for the
purposes of widening and constructing the
four lane road in the year 2005 and the
National
Highways
Authority
has
accepted the complainant/opposite party
no. 2 as a tenant of a shop in the market
3 All] Padam Gupta Vs. The State of U.P. and Anr.
1319
vide its order dated 27.1.2006. It is further
submitted by learned counsel for the
complainant that the opposite party no.
2/complainant filed an injunction suit
against the father of the revisionist in the
year 2006 being Original Suit No. 412 of
2006 when the assurance of the father of
the revisionist that subsequent to the
renovation and repairing of the market, he
will be allotted a shop was not fulfilled.

8. Heard Sri Saurabha Pathak,
Advocate, holding brief for Sri J.P.
Pandey,
learned
counsel
for
the
revisionist, Sri Sudhanshu Kumar Singh,
learned counsel for the opposite party no.
2 and learned AGA for the State and have
also perused the material on record.

9. Before coming to the merits of the
case, it would be relevant to quote the
provision of Section 138 of Negotiable
Instruments Act, which deals with the
ingredients of the offence for dishonour of
the cheque and the consequent non-payment
of the amount due thereon, reads as follows:
-

"138.
Dishonour
of
cheque
for
insufficiency, etc, of funds in the account -
Where any cheque drawn by a person on
account maintained by him with a banker for
the 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 arrangement made with
the 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 a 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 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."

10. Perusal of aforesaid legal provision
contemplates that section 138 creates an
offence for which the mental elements are
not necessary. It is enough if a cheque is
drawn by the accused 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 discharge
in whole or in part, of any debt or other
liability due.

11. From reading of the aforesaid, the
main part of the provision can be segregated
into three compartments, namely, (i) the
cheque is drawn by a person, (ii) the cheque
drawn on an account maintained by him with
the banker for payment of any amount of
1320 INDIAN LAW REPORTS ALLAHABAD SERIES
money to another person from out of that
account for the discharge, in whole or in part,
of a debt or other liability, is returned unpaid,
either because the amount of money standing
to the credit of that account is insufficient to
honour the cheque or it exceeds the amount
arranged to be paid from that account by an
arrangement made with the bank and (iii)
such person shall be deemed to have
committed an offence and shall, without
prejudice to any other provision of the Act,
be punished with imprisonment for a term
which may extend to two years or with fine
which may extend to twice the amount of the
cheque or with both.

12. The proviso to the said section
postulates under what circumstances the
section shall not apply. In the case at
hand, the Court is not concerned with the
said aspect. It will not be out of place to
state that the main part of the provision
deals with the basic ingredients and the
proviso deals with certain circumstances
and lays certain conditions where it will
not be applicable. The emphasis has been
laid on the factum that the cheque has to
be drawn by a person on the account
maintained by him and he must have
issued the cheque in discharge of any debt
or other liability.

13. Coming back to the facts of the
present criminal revision, it is not in
dispute that the building was constructed
at Tundla Chauraha by the father of the
revisionist in which the opposite party no.
2 was admitted as tenant. Tenancy of the
shop
in
the
market
by
the
complainant/opposite party no. 2 was also
accepted by the National Highways
Authority. Said building was demolished
by the National Highway Authority of
India for widening of the road and after
demolition of the said market the
Highway
Authority
under
the
rehabilitation
Scheme
had
offered
compensation to the owner of the market
which was accepted by the father of the
revisionist and the Highway Authorities
had also sanctioned rent allowances to the
tenants of the market including the
complainant/opposite party no. 2 as is
evident from annexure no. 2 to the
counter affidavit.

14. Complaint discloses that the
cheque was issued by the revisionist as
compensation for the loss sustained by the
complainant on account of destruction of
the the rented shop by the National
Highway
Authority
whereas
the
revisionist claims that the cheque book in
question was misplaced on 31.03.2010
while he was going to the Bank from his
house and the same has been misused by
the
complainant.
Revisionist
has
submitted that he informed the police
about the loss on 31.3.2010 itself almost
eighty days prior to the date of issuance of
the cheque. Information was also sent to
the
concerned
bank
on
21.6.2010.
However, the complainant by misusing
the cheque in question dated 20.6.2010
presented the same in the Bank but the
same was not honoured and returned with
an endorsement of 'insufficient funds' on
21.7.2010.

15. In the rejoinder affidavit, it is
stated that the revisionist had no concern
with the disputed shop. Said building was
constructed
by
the
father
of
the
revisionist. Complainant/opposite party
no. 2 was admitted as tenant by the father
of the revisionist. This building was
completely demolished by the National
Highway Authority for widening of
National Highway on 4.10.2007. Since
then the disputed shop is not in existence
3 All] Padam Gupta Vs. The State of U.P. and Anr.
1321
therefore the complainant/opposite party
no. 2 is no longer tenant of his father
since 4.10.2007.

16. It is admitted position that if the
disputed transaction is ignored then
revisionist does not owe any money or
has
any
liability
towards
the
complainant/opposite party no. 2. If
disputed transaction is taken into account
even then it is apparent that the
complainant/opposite party no. 2 was not
tenant of revisionist. There was no
occasion for him to personally issue the
said cheque to the complainant/opposite
party no. 2. He did not have any
commercial
relationship
with
the
complainant/opposite
party
no.
2.
Opposite party no. 2 was the tenant of
father of the revisionist. Revisionist had
no personal liability towards the tenant.
Contents of Original Suit No. 912 of
2006, filed by the tenant/complainantopposite party no. 2 also makes it clear.

17. Ingredients of Section 138 of
N.I. Act presupposes the existence of
legally enforceable debt or liability.
Unless cheque is issued in discharge of
such debt or liability, no offence is made
out even if the cheque is returned due to
insufficiency of funds.

18. In the facts of the present case, it
is apparent that revisionist personally did
not have legally enforceable debt or
liability towards the complainant/opposite
party no. 2. He did not own the disputed
shop. Facts of the complaint (Annexure
No. 8) do not disclose ingredients of
offence under Section138 of N.I. Act
against the revisionist.

19. Learned Magistrate should have
inquired from the complaint and the
evidence both oral and documentary in
support thereof and should have come to
the conclusion as to whether prima facie
case is made out to bring home the
accused for the offence as alleged during
the course of inquiry as mandated by
Apex Court in Pepsi Foods Vs Special
Judicial Magistrate, (1997) 8 JT (SC) 705,
wherein the Apex Court has held as
under:-

"Summoning of an accused in a
criminal case is a serious matter. Criminal
law cannot be set into motion as a matter of
course. it is not that the complainant has to
bring only two witnesses to support his
allegations in the complaint to have the
criminal law set into motion. The order of the
magistrate summoning the accused must
reflect that he has applied his mind to the
facts of the case and the law applicable
thereto. He has to examine the nature of
allegations made in the complaint and the
evidence both oral and documentary in
support thereof and would that be sufficient
for the complainant to succeed in bringing
charge home to the accused. It is not that the
Magistrate is a silent spectator at the time of
recording of preliminary evidence before
summoning of the accused. Magistrate has to
carefully scrutinise the evidence brought on
record and may even himself put questions to
the complainant and his witnesses to elicit
answers to find out the truthfulness of the
allegations or otherwise and then examine if
any offence is prima facie committed by all
or any of the accused. "

20. Similarly, in M. N. Ojha Vs
Alok Kumar Srivastava, AIR 2010 SC
201, Apex Court held as under:-

"The case on hand is a classic
illustration of non application of mind by the
learned Magistrate. The learned Magistrate
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
did not scrutinize even the contents of the
complaint,
leave
aside
the
material
documents available on record. The learned
Magistrate truly was a silent spectator at the
time of recording of preliminary evidence
before summoning the appellants."

21. Thus, in view of the aforesaid
legal position, it is incumbent upon
Magistrates to ensure that the judicial
process should not be an instrument of
needless harassment. In complaint cases
no one is present to watch the interest of
prospective accused at initial stage.
Therefore, it is duty of the Magistrates to
ensure precise and fair enquiry in order to
arrive at reasonable conclusion. His
energetic participation at initial stage is
required in order to obviate or reduce
false implications. Impugned order does
not reflect required participation by the
Magistrate
before
summoning
the
revisionist to face the trial for the offence
under Section 138 of the N.I. Act.

22. In view of above, the criminal
revision is allowed. The impugned order
dated 26.10.2010 passed by learned Addl.
Chief Judicial Magistrate Ist, Firozabad in
Criminal Complaint Case No. 4251 of
2010 (Surendra Kumar Jain Vs Padam
Gupta) under Section 138 of Negotiable
Instruments Act 1881, P.S. Tundla,
District Firozabad is hereby quashed.

23. Office is directed to send the
copy of the order to learned court below
within a fortnight.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.09.2013

BEFORE
THE HON'BLE UMA NATH SINGH, J.
THE HON'BLE MAHENDRA DAYAL, J.
Special Appeal (D) No.780 of 2012

State of U.P.
 ...Appellant
Versus
Sanjeev Kumar Bajpai ...Respondent

Counsel for the Appellant:
C.S.C.

Counsel for the Respondent:
Sri Satya Narain Shukla

High Court Rules-Chapter VIII Rule-5-
Special Appeal-84 days delay-without
proper explanation-except discussionsfrom one table to another-held-court
should
not
condone
the
delay
on
personal
preception
and
predictionappeal dismissed on ground of delay
itself.

Held: Para-7
On
due
consideration
of
rival
submissions, we do not find satisfactory
explanation to condone the delay. The
time taken in the circulation of file from
table to table of the officials involved in
the process, thus cannot be condoned. It
appears that there has been no sincere
effort to challenge the order of the
learned Single Judge. Moreover, Hon'ble
the Apex Court in the case of Lanka
Venkateswarlu's case (supra) has held
that the courts do not enjoy unlimited
and unbridled discretionary powers to
condone the delay. The orders of the
High Court should not be based on
personal perceptions and predilection.

Case Law discussed:
(2011) 4 SCC 363

(Delivered by Hon'ble Uma Nath Singh, J.)

1. We have heard learned counsel
for parties and perused the pleadings of
special appeal.

2. The appeal arises out of the
judgment dated 10.07.2012 passed by