# Prem Sagar Soni v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1565
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-04
- **Case number:** Application U/S 482 No. 41220 of 2012
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-sagar-soni-v-state-of-u-p-anr-45541
- **Pages:** 4

## Headnote

A. Criminal law- Negotiable Instruments
Act- Section 138-for a cause of action to
arise for an offence punishable under Section
138 of N.I. Act, the condition precedent is
issuing of notice of demand within 30 days
from a receipt of information of dishonour .

B. Criminal Law - Negotiable Instruments
Act - Section 142- From the very perusal of
impugned order, it is apparent that complaint
was not filed within stipulated period under
Section 142 N.I. Act - Notice, which ought to
be issued within one month from date of
receipt of dishonour of cheque, was not issued
- Section 142 of N.I. Act provides a further
limitation of one month for filing complaint
from the date when cause of action has arisen
- this period of one month may be extended
provided complainant satisfies the Court that
there was sufficient reason for not filing a
complaint
under
such
scheduled
period.
Whereas in present case there is no sufficient
reason, except this that accused was making
assurance for making payment, for which there
was no evidence on record. This specific
ingredient of offence was missing. Hence, there
was no abuse of process of law by trial court in
passing impugned order. ( Para 6,7,8)

Criminal Application rejected.

## Text

2 All. Prem Sagar Soni Vs. State of U.P. & Anr.
1565
rejected. There shall be no order as to
costs.
----------
(2020)02ILR A1565

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.02.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 41220 of 2012

Prem Sagar Soni ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Shiva Kant Srivastava

Counsel for the Opposite Parties:
A.G.A., Sri Shyam Sunder Yadav

A. Criminal law- Negotiable Instruments
Act- Section 138-for a cause of action to
arise for an offence punishable under Section
138 of N.I. Act, the condition precedent is
issuing of notice of demand within 30 days
from a receipt of information of dishonour .

B. Criminal Law - Negotiable Instruments
Act - Section 142- From the very perusal of
impugned order, it is apparent that complaint
was not filed within stipulated period under
Section 142 N.I. Act - Notice, which ought to
be issued within one month from date of
receipt of dishonour of cheque, was not issued
- Section 142 of N.I. Act provides a further
limitation of one month for filing complaint
from the date when cause of action has arisen
- this period of one month may be extended
provided complainant satisfies the Court that
there was sufficient reason for not filing a
complaint
under
such
scheduled
period.
Whereas in present case there is no sufficient
reason, except this that accused was making
assurance for making payment, for which there
was no evidence on record. This specific
ingredient of offence was missing. Hence, there
was no abuse of process of law by trial court in
passing impugned order. ( Para 6,7,8)

Criminal Application rejected.

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. The applicant, by means of this
application under Section 482 Cr.P.C., has
invoked the inherent jurisdiction of this
Court with prayer to quash the impugned
order
dated
18.06.2012,
passed
by
A.C.J.M., Court No. 11, Azamgarh in
Complaint Case No. 6381 of 2011, under
Section 138 N.I. Act, P.S. Sidhari, District
Azamgarh.

2. Heard learned counsel for
applicant, learned counsel for opposite
party no. 2, learned A.G.A. for State and
perused the record.

3. Learned counsel for applicant
argued that opposite party no. 2 had taken
Rs.8,00,000/- as earnest money for making
a sale of immovable property in favour of
applicant on 10.09.2010 and an assurance
for execution of sale deed was given
within a week. On 18.09.2010 a further
demand
of
Rs.2,00,000/-
towards
consideration was made and it was denied.
Money paid was demanded back. Opposite
party no. 2 requested for grant of time for
making repayment, but it was not paid
back. Ultimately, on 05.10.2010 opposite
party no. 2 issued two cheques, one of
Rs.2,00,000/- bearing No.465182 and
another
of
Rs.1,00,000/-
bearing
No.465183 with assurance for returning
remaining Rs.5,00,000/- in cash. These
two
cheques
were
presented
before
Allahabad Bank, Branch Daulatabad,
District
Azamgarh,
which
were
dishonoured because of insufficient fund
in
account.
This
dishonour
was
1566 INDIAN LAW REPORTS ALLAHABAD SERIES
communicated on 30.03.2011. A notice
was issued to opposite party no. 2, but
even after notice dated 21.05.2011, no
response was made. Even after receipt of
notice, an assurance was made for making
repayment of entire amount within a
month. Applicant, being an innocent
person, waited for a month, but it was of
no avail. Again a request was made,
wherein assurance was being extended on
every day. Ultimately, a complaint was
filed
on
04.07.2011
for
offences
punishable under Section 138 N.I. Act and
it was rejected by trial court because of
being time barred. It was abuse of process
of law. Hence, this application with above
prayer.

4. Learned counsel for opposite party
no. 2 vehemently opposed the application
with this contention that this proceeding
under
Section
482
Cr.P.C.,
is
not
maintainable, rather appeal under Section
372 Cr.P.C. with a leave to appeal under
Section 378 Cr.P.C. ought to be filed by
the applicant.

5. Learned A.G.A. has vehemently
opposed the application.

6. From the very perusal of
impugned order, it is apparent that this
complaint was not filed within stipulated
period under Section 142 N.I. Act. Notice,
which ought to be issued within one month
from date of receipt of dishonour of
cheque, was not issued. It has been written
in this application that cheque was
dishonoured
and
communicated
on
30.03.2011, but notice was issued on
21.05.2011. Whereas, Section 138 of N.I.
Act constitutes offence if a cheque has
been issued against existing liability or
debt; this has been presented to the Bank
within a period of six months or within
period of its validity, whichever is earlier;
it
has
been
dishonoured owing
to
insufficiency
of
amount
or
amount
arranged there for; a demand notice for
payment of cheque amount is to be given
to the drawer of the cheque within 30 days
of the receipt of information by him from
the Bank regarding return of cheque as
unpaid and within 15 days of receipt of
same, if payment is not being made, then
and then only cause of action arises for
filing of complaint for an offence
punishable under Section 138 N.I. Act.
Section 142 of N.I. Act provides a further
limitation
of one
month
for
filing
complaint from the date when cause of
action has arisen. Section 142 of N.I. Act
reads as under:-

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: 24

[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.

....................

7. Meaning thereby, this period of
one month may be extended provided
complainant satisfies the Court that there
was sufficient reason for not filing a
2 All. Prem Sagar Soni Vs. State of U.P. & Anr.
1567
complaint under such scheduled period.
Whereas in present case there is no
sufficient reason, except this that accused
was
making
assurance
for
making
payment, for which there was no evidence
on record. Moreso, Section 138 of N.I.
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 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, 20
[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.

8. The notice is to be issued within
30 days form the date of receipt of
dishonour information from the Bank
concerned i.e. for a cause of action to
arise for an offence punishable under
Section 138 of N.I. Act, the condition
precedent is issuing of notice of demand
within 30 days from a receipt of
information of dishonour and in present
case no such notice was issued within 30
days.
Admittedly,
cheque
was
dishonoured
and
information
was
received on 30.03.2011 and notice was
issued on 21.05.2011 i.e. much beyond
above 30 days. This specific ingredient
of offence was missing. Hence, there
was no abuse of process of law by trial
court in passing impugned order.

9. Jurisdiction of High Court under
Section 482 Cr.P.C. is for ensuring end
of justice and it can exercise that
inherent jurisdiction in any case where it
finds that subordinate court is doing
abuse
of
process
of
law.
Hence,
argument of learned counsel for the
opposite party no. 2 that this proceeding
under
Section
482
Cr.P.C.
is
not
maintainable is also not tenable.

10. Accordingly, this application
merits its dismissal. The application is
dismissed as such.
----------
1568 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)02ILR A1568

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.02.2020

BEFORE
THE HON'BLE AJIT SINGH, J.

Application U/S 482 No. 43580 of 2019
&
Application U/S 482 No. 43493 of 2019

Smt. Rekha ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Mohad. Rashid Siddiqui, Sri Abhinav
Gaur, Sri Anoop Trivedi

Counsel for the Opposite Parties:
A.G.A., Sri Swetashwa Agarwal

A. Criminal law - Code of Criminal
Procedure,
1973-Sections
216
and
217- Amended Charge- The provisions of
Sections 216 and 217 are mandatory in
nature as they not only sub-serve the
requirement of principles of natural justice
but guarantee an important right which is
given to the accused persons to defend
themselves appropriately by giving them
full opportunity of cross-examination of the
witnesses.

It is incumbent upon the trial court to
afford the accused an opportunity of crossexamination, once the charge is amended
and denial of such opportunity will amount
to violation of the principles of natural
justice and render the trial vitiated. ( Para
12, 13, 14)

Criminal Application disposed of.

Case law discussed:-

Bhimanna Vs. St. of Karnataka, (2012) 9 SCC 650

(Delivered by Hon'ble Ajit Singh, J.)

1. Heard Sri Anoop Trivedi, learned Senior
Counsel assisted by Sri Mohd. Rashid Siddiqui
and Abhinav Gaur, learned counsel for the
applicant and Sri Swetashwa Agarwal, learned
counsel for the opposite party no. 2 and learned
A.G.A. for the State.

2. The present 482 Cr.P.C. Application
No.43580 of 2019 has been filed to quash the
orders dated 18.11.2019, 19.11.2019 and
20.11.2019 passed by learned Additional
Sessions Judge, Baghpat in S.T. No. 26 of 2017
and S.T. 149 of 2017 (State Vs. Rekha and
others), under Sections 147, 148, 149, 302, 307
and 120B IPC, arising out of Case Crime No.271
of 2016, Police Station Binauli, District Baghpat.

3. So far as the Application under Section
482 Cr.P.C. bearing No. 43493 of 2019 is
concerned, has also been filed to quash the order
dated 19.11.2019 passed by Additional Sessions
Judge, IVth, Baghpat in Session Trial No.26 of
2017 (State Vs. Satendra and others), arising out
of Case Crime No. 271 of 2016, under Sections
147, 148, 149, 302, 307, 120B IPC, Police
Station Binauli, District Baghpat.

4. Both these applications mentioned
above are being decided by a common judgment
and order as the controversy involved in these
two applications is same and identical.

5. The police investigated the matter
and submitted the charge sheet against the
accused persons, namely, Satendra, Smt.
Rekha, Manoj, Nirbhay, Anil, Subodh
along with Arjun and the trial commenced.
The accused Rekha was charged under
Section 120B read with Section 302 IPC
and she was further charged under Section
120B read with Section 307 IPC and the
accused Manoj was also charged under
Section 120B read with Section 302 and
307 IPC and all other accused persons
were charged under Sections 302, 147,