# Rajiv Kumar Rai v. State Of U.P. & Anr - **Citation:** (2016) 5 ILRA 381 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-05-24 - **Bench:** Suneet Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajiv-kumar-rai-v-state-of-u-p-anr-43843 - **Pages:** 5 ## Text 5 All. Rajiv Kumar Rai Vs State Of U.P. & Anr. 381 38. The instant application filed under section 482 Cr.P.C. is, accordingly, allowed. The charge sheet in Crime No. 271 of 1997, under sections 419, 420, 467, 468, 471, 406 IPC and 13(1)(d) of the P.C. Act, Police Station George Town, District Allahabad pending before the Special Judge (Anti Corruption), Varanasi, so far as it relates to applicant Phool Chandra Arya only, is quashed. 40. Proceedings against other accused can continue. --------- ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 24.05.2016 BEFORE THE HON'BLE SUNEET KUMAR, J. Application U/S 482 No.- 16735 Of 2016 Rajiv Kumar Rai ...Applicant Versus State Of U.P. & Anr. ...Opposite Parties Counsel for Applicant: Ankit Kumar Rai Counsel for Opposite Parties: G.A. HELD Dishonour of a cheque on the ground that the drawer's signature does not match the specimen signature with the bank constitutes an offence under Section 138 of the Negotiable Instruments Act, 1881. Section 138 N.I. Act cannot be interpreted narrowly to restrict criminal liability only to dishonour caused by "insufficient funds" or "exceeds arrangement". The expression "amount of money standing to the credit of that account is insufficient" is a genus, and reasons such as: "account closed", "payment stopped", "signature does not match", "image not found" are species of the same genus, and therefore attract Section 138 N.I. Act. 382 INDIAN LAW REPORTS ALLAHABAD SERIES Dishonour of cheque due to signature mismatch implies failure attributable to the drawer, and falls within the mischief sought to be remedied by Section 138 N.I. Act. Section 138 is a penal provision with a remedial object, intended to enhance the credibility of negotiable instruments and promote commercial confidence; therefore, it must be interpreted purposively. The revisional court committed a manifest error of law in relying upon an overruled judgment and holding that dishonour due to signature mismatch does not constitute an offence under Section 138 N.I. Act. Consequently, the order dated 10.03.2016 passed by the Revisional Court was set aside, and the summoning order passed by the Magistrate was restored. CASE LAW CITED:- M/s Laxmi Dyechem Vs. State of Gujarat and Others (2012) 13 SCC 375 Swantraj Vs. State of Maharashtra (1975) 3 SCC 322 State of Tamil Nadu Vs. M.K. Kandaswami (1975) 4 SCC 745 NEPC Micon Ltd. Vs. Magma Leasing Ltd. (1999) 4 SCC 253 Modi Cements Ltd. Vs. Kuchil Kumar Nandi (1998) 3 SCC 249 M.M.T.C. Ltd. and Another Vs. Medchl Chemicals and Pharma (P) Ltd. and Another (2002) 1 SCC 234 Goaplast (P) Ltd. Vs. Chico Ursula D'Souza and Another (2003) 3 SCC 232 Rangappa Vs. Sri Mohan (2010) 11 SCC 441 Vinod Tanna and Others Vs. Zaher Siddiqui and Others (2002) SCC (Cri) 1825 (Delivered by Hon'ble Suneet Kumar, J.) 1. The applicant-complainant has approached this Court assailing the order dated 10.3.2016, passed by the revisional court/ Additional Sessions Judge, Court no.6, Ghazipur in Criminal Revision No. 185 of 2014, whereby the summoning order passed by the learned Judicial Magistrate-II, Ghazipur in Case No. 175 of 2011 ( Rajiv Kumar Rai Vs. Yashwant Singh) 5 All. Rajiv Kumar Rai Vs State Of U.P. & Anr. 383 summoning the accused/opposite party no.2 in proceeding under Section 138 of N.I. Act has been set aside and the matter remanded. 2. The facts briefly is that the opposite party no.2 is having brick-kiln, the complainant supplied charcoal to the opposite party no.2, for payment of the sum due cheques were issued, upon presentation to the Bank, the cheques were returned by the bank making an endorsement that signature do not match. After lapse of statutory period of notice, the opposite party no.2 did not pay the sum, consequently, the present complaint was filed. The learned Magistrate upon recording statement of applicant under Section 200 Cr.P.C and statement of his witnesses under Section 202 summoned the opposite party no.2, aggrieved, the summoning order was assailed in revision by the opposite party no.2, the revisional court allowed the revision by the impugned order dated 10.3.2016 and remanded the matter to the Magistrate to decide afresh. 3. The sole contention of learned counsel for the applicant is that the revisional court committed an error in holding that the bank by returning the cheque endorsing that the signature does not match would not constitute an offence under Section 138 N.I. Act. Learned counsel for the applicant would submit that dishonour of cheque for the reason that signature of the drawer did not match with the specimen signature available with the Bank would attract section 138 of N.I. Act. 4. In M/s Laxmi Dyechem Vs. State of Gujarat and others, 2012(13) SCC 375, the question that fell for determination was whether dishonour of a cheque would constitute an offence only in one of the two contingencies envisaged under Section 138 of the Act. The Apex Court placing reliance on the decision rendered in Swantraj Vs. State of Maharashtra ( 1975) 3 SCC 322 held that a narrow interpretation of Section 138 as suggested by the drawer of the cheque would defeat the legislative intent underlying the provision. Reliance was placed on a decision rendered in State of Tamil Nadu Vs. M.K. Kandaswami ( 1975) 4 SCC 745, wherein the Supreme Court declared that while interpreting a penal provision which is also remedial in nature, a construction that would defeat its purpose or have the effect of obliterating it from the statute book should be eschewed and that if more than one constructions are possible the Court ought to choose a construction that would preserve the workability and efficacy of the statute rather than an interpretation that would render the law otiose or sterile. 5. Relying upon the aforementioned judgements, the Supreme Court repelled the argument that the provision of Section 138 of NI Act should be strictly construed. 6. In NEPC Micon Ltd. V. Magma Leasing Ltd ( 1999) 4 SCC 253 where the cheques issued by the appellant-company in discharge of its liability were returned by the company with the comments ' accounts closed', it was held that dishonour on that ground was culpable under Section 138 NI Act. 384 INDIAN LAW REPORTS ALLAHABAD SERIES 7. In Modi Cements Ltd Vs. Kuchil Kumar Nandi (1998) 3 SCC 249, where similar question had arisen, the question was whether dishonour of cheque on the ground that drawer had 'stopped payment' was held punishable under Section 138 of the Act, the expression " the amount of money.... is sufficient to honour the cheque" is a genus of which the expression 'account being closed' is a specie. (Refer M.M.T.C Ltd and another Vs. Medchi Chemicals and Pharma ( P) Ltd and another (2002) 1 SCC 234 and Goaplast (P) Ltd Vs. Chico Ursula D'sourza and another, (2003) 3 SCC 232. 8. A three Judge Bench in Brangappa Vs. Sri Mohan, (2010) 11 SCC 441 approved the ratio in Goaplast case and held that failure of the drawer of the cheque to put up a probable defence for rebutting the presumption that arises under Section 139 would justify conviction even when the appellant drawer may have alleged that the cheque in question had been lost and was being misused by the complainant. 9. In Laxmi Dyechem Vs. State of Gujrat ( 2012) 13 SCC 375, upon approving the ratio in the aforementioned judgments, held as follows: "We find ourselves in respectful agreement with the decision in NEPC Micon Ltd( supra) that the expression" amount of money........... is insufficient" appearing in Section 138 of the Act is a genus and dishonour for reasons such " as account closed", " payment stopped", referred to the drawer" are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the " signatures do not match" or that the " image is not found", which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act". 10. The net effect is that dishonour on the ground that the payment has been stopped, regardless whether such stoppage is with or without notice to the drawer, and regardless whether the stoppage of payment is on the ground that the amount lying in the account was not sufficient to meet the requirement of the cheque, would attract the provisions of Section 138. 11. In view of the authoritative pronouncement of the Apex court, the reliance placed by the revisional court on the decision rendered in Vinod Tanna and other Vs. Jahir Siddique and others, (2002) SCC ( Crl) 1825 ( since overruled) holding that refusal of Bank to honour the cheque for the reason that the signature does not match would not constitute an offence under Section 138 of N.I. Act is erroneous, therefore, the impugned order dated 10.3.2016 is set aside to the extent hereinabove and would stand substituted by order passed herein. 12. With the above observation, the petition is allowed. ---------- 5 All. Dr. Shiv Vinayak Tripathi Vs The State Of U.P. & Ors. 385 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 25.05.2016 BEFORE THE HON'BLE TARUN AGARWALA, J. THE HON'BLE PRABHAT CHANDRA TRIPATHI, J. Civil Misc. Writ Petition/ Writ A No.- 16959 Of 2016 & Connected With Other Cases Dr. Shiv Vinayak Tripathi ...Petitioner Versus The State of U.P. & Ors. ...Respondents HELD : The writ petitions were partly allowed. The Commission was directed to prepare a fresh merit list and call candidates strictly in the ratio of 1:3 category-wise without discrimination. Case Law Cited:- • Rule 29(iii), U.P.P.S.C. (Procedure and Conduct of Business) Rules, 2011 • Rule 52, Rules of 2011 • Rules 2 & 3, U.P. Public Service Commission Preliminary Examination Rules, 1986 (Delivered by Hon'ble Tarun Agarwala, J.) 1. We have heard Sri Radha Kant Ojha, the learned senior counsel assisted by Sri A.K.Singh and Sri V.K.Singh, Mrs. Darshana Vatsa, Sri S.K.Chaubey, Sri V.K.Rai, Sri V.K.Pandey, Sri Sanjiv Singh, Sri Rakesh Kumar Tripathi and Sri Upendra Kumar Verma, the learned counsel for the petitioners and Sri M.N.Singh, the learned counsel for the U.P. Public Service Commission. 2. This group of petitions raises a common question and are being decided together. The fact, as culled out from the assertions made in the writ petitions, counter affidavit and the supplementary counter affidavit is, that the petitioners hold a valid degree of Bachelor of Homeopathic Medicine and Surgery (BHMS). An advertisement No.1 of 2013-14, dated 24.9.2013 was issued by the U.P. Public Service Commission (hereinafter referred to as the Commission) pursuant to a direction from the State Government to fill up 177 posts of Homeopathic Medical Officer in which 23 posts were reserved for Other Backward Classes, 41 posts for Scheduled Caste category and 113 posts for unreserved category. Pursuant to this advertisement, 5577 candidates applied, which was more than 20 times the number of seats offered.