# Rakesh Upadhyay v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 622
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-01
- **Case number:** Application U/S 482. No. 14197 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-upadhyay-v-state-of-u-p-anr-51928
- **Pages:** 7

## Headnote

A. Criminal Law-Criminal Procedure Code,
1973-Section 482-Negotiable Instruments
Act,
1881-Section
138-Challenge
tosummoning order-the applicant had issued
two cheque which were dishonored due to
insufficient funds-a demand notice was
sent
to
the
applicant,
which
went
unanswered, leading to the initiation of
legal action under NI Act-The summoning
order issued by the Magistrate did not
adequately consider the necessary legal
conditions u/s 138 and 142 of the Act, such
as timely presentation of the cheque,
issuance of demand notice, and filing of the
complaint within the prescribed periodThus, the failure to reflect these conditions
in the summoning order was deemed a
significant procedural lapse-The High court
set
aside
the
impugned
summoning
order.(Para 1 to 18)

B. For a court to take cognizance of an
offense u/s 138 of the Act it must strictly
adhere to the procedural requirements
outlined in sections 138 and 142 of the act.
(i) the cheque must be presented to the
bank within its period of validity. (ii) the
payee or holder must issue a written
demand notice to the drawer within 30
days of receiving information about the
cheques dishonor. (iii) if the drawer of the
cheque fails to make payment within 15
days of receiving the demand notice, the
complaint must be filed within one month
from the expiration of this 15 day period.
Failure to reflect these conditions in the
summoning order renders it procedurally
defective. (Para 11)

The application is allowed. (E-6)

List of Cases cited:

## Text

622 INDIAN LAW REPORTS ALLAHABAD SERIES
structure or and remove after the notice
serve,
the
temporary
nature
of
the
occupation may suggest that there was no
intention to unlawfully grab public property
related to the prevention of damage to public
property Act. Such laws typically aim to
prevent intentional or negligent harm to
public assets or resources. As long as the use
is temporary, non-destructive, and does not
pose any risk to the property or public
safety, its may not to be considered a
violation of law related to the prevention of
damage to public property.

23. The court is explaining that the
Prevention of Damage to Public Property
(PDPP) Act, 1984, only applies to situations
where public property is damaged or
destroyed
during
riots
or
public
demonstrations. This means if there's damage
to things like government buildings or
infrastructure during these events, the PDPP
Act can be used to address it. So, if there's no
actual damage or loss related to Gram Sabha
land or any other village land due to illegal
encroachment by someone living in the village
or holding land there temporarily, without
causing damage or decreasing the land's value,
then the PDPP Act wouldn't be applicable. In
essence, if someone occupies land unlawfully
but doesn't cause any harm or decrease in
value to the land, the PDPP Act doesn't come
into play. This means that the Act is primarily
concerned with instances where there is actual
damage to public property or where the value
of the property is diminished due to unlawful
activities.

24. Thus, prima facie it appears that the
learned trial court has failed to appreciate the
materials available on record and has committed
manifest illegality while passing the impugned
order while rejecting the discharge application
and the same is passed without considering the
evidence produced by the applicants, which is
unsustainable in the eyes of law. Thus, this Court
allow this application under Section 482 Cr.P.C.
and quash the order dated 16.05.2023 passed by
Learned
Additional
Civil
Judge
(C.D.)
Fast/ACJM. Ambedkar Nagar in Criminal Mise.
Case No. 1223/2023 vide Crime No. 12/2020,
U/s 2/3 of Prevention of Damage to Public
Property Act, Police Station Maharuwa, District-
Ambedkar Nagar as well as further proceeding
is also quashed.

25. Accordingly, this application under
Section 482 Cr.P.C. is allowed and the
impugned order dated 16.05.2023 passed by
Learned
Additional
Civil
Judge
(C.D.)
Fast/ACJM. Ambedkar Nagar in Criminal Mise.
Case No. 1223/2023 vide Crime No. 12/2020,
U/s 2/3 of Prevention of Damage to Public
Property Act, Police Station Maharuwa, District-
Ambedkar Nagar as well as entire criminal
proceedings of Criminal Mise. Case No.
1223/2023 vide Crime No. 12/2020, U/s 2/3 of
Prevention of Damage to Public Property Act,
Police Station Maharuwa, District- Ambedkar
Nagar, pending before the court of Additional
Civil Judge (C.D.) Fast/ACJM. Ambedkar
Nagar are hereby quashed.

26. Let a copy of this judgment and order
be sent to the trial court for necessary
compliance.
----------
(2024) 5 ILRA 622
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.05.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482. No. 14197 of 2024

Rakesh Upadhyay ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties
5 All. Rakesh Upadhyay Vs. State of U.P. & Anr.
623
Counsel for the Applicant:
Sri Dilip Kumar Dubey, Sri Prabhat Kumar
Tiwari

Counsel for the Opposite Parties:
G.A.

A. Criminal Law-Criminal Procedure Code,
1973-Section 482-Negotiable Instruments
Act,
1881-Section
138-Challenge
tosummoning order-the applicant had issued
two cheque which were dishonored due to
insufficient funds-a demand notice was
sent
to
the
applicant,
which
went
unanswered, leading to the initiation of
legal action under NI Act-The summoning
order issued by the Magistrate did not
adequately consider the necessary legal
conditions u/s 138 and 142 of the Act, such
as timely presentation of the cheque,
issuance of demand notice, and filing of the
complaint within the prescribed periodThus, the failure to reflect these conditions
in the summoning order was deemed a
significant procedural lapse-The High court
set
aside
the
impugned
summoning
order.(Para 1 to 18)

B. For a court to take cognizance of an
offense u/s 138 of the Act it must strictly
adhere to the procedural requirements
outlined in sections 138 and 142 of the act.
(i) the cheque must be presented to the
bank within its period of validity. (ii) the
payee or holder must issue a written
demand notice to the drawer within 30
days of receiving information about the
cheques dishonor. (iii) if the drawer of the
cheque fails to make payment within 15
days of receiving the demand notice, the
complaint must be filed within one month
from the expiration of this 15 day period.
Failure to reflect these conditions in the
summoning order renders it procedurally
defective. (Para 11)

The application is allowed. (E-6)

List of Cases cited:

1. In Re Vs St. of A.P. & ors. (2009) 5 SCC 212

2. Kodungallur Film Scty. & anr. Vs U.O.I. & ors.
(2018) 10 SCC 713

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard learned counsel for the
applicant and Sri Arbind Kumar, learned
A.G.A. for the State.

2. The present 482 Cr.P.C. application
has been filed for quashing of entire
proceeding as well as summoning order
dated
22.11.2023
passed
by
learned
Additional
Chief
Judicial
Magistrate,
Second,
Jaunpur
in
Complaint
Case
No.13185 of 2023 (Jay Prakash Upadhyay
Vs. Rakesh Upadhyay), under Section 138
of N.I. Act, Police Station Sujanganj,
District Jaunpur, pending in the Court of
Additional
Chief
Judicial
Magistrate,
Second, Jaunpur.

3. Facts giving rise to the present case
are that the opposite party no.2 had filed a
complaint under Section 138 N.I. Act
against the applicant with the allegation that
the complainant and the present applicant
were good friends and the applicant was
involved in property dealing. He assured the
complainant to provide him with land. For
that
purpose,
Rs.20,00,000/-
(Rupees
Twenty Lac) was taken by the opposite party
no.2 as advance, but subsequently, the
applicant did not execute the sale deed of the
land despite repeated requests of the
complainant. The applicant issued two
cheques for each Rs.10,00,000/- (Ten Lac)
on 02.03.2023. When the complainant
presented those cheques in his account
maintaining in Baroda U.P. Gramin Bank,
the
same
was
returned
because
of
insufficiency of fund in the applicant's
account. After that, despite repeated request
applicant has not paid the cheque amount.
624 INDIAN LAW REPORTS ALLAHABAD SERIES
After that, the complainant sent demand
notice
through
registered
post
on
29.03.2023 to the present applicant, but
despite receiving the same cheque, the
amount was not paid by the applicant. In
support of his complaint, opposite party no.2
had also filed a receipt of registered post
dated 29.03.2023 as well as the account
ledger report issued by Baroda U.P. Gramin
Bank regarding the account of opposite
party no.2 showing the bouncing of cheque
on 02.03.2023. Learned Magistrate, after
that, had issued a summons to the applicant
by order dated 22.11.2023, which is
impugned in the present application.

4. Contention of learned counsel for
the
applicant
is
that
the
impugned
summoning order is bad in the eyes of the
law because the cognizance for the offence
under Section 138 of N.I. Act can be taken
only
after
satisfying
the
condition
mentioned under Section 142 N.I. Act,
which requires a complaint should be made
within one month from the date of arising of
the cause of action, and 15 days' notice of
demand should also be made within 30 days
after receiving information from the bank
regarding dishonour of cheque, but in the
present case learned Magistrate had not
discussed anything.

5. Per contra, learned A.G.A. has
submitted that the issue raised by learned
counsel for the applicant is his defence and
disputed question of fact that can be decided
during trial.

6. Considering the submission above
of learned counsel for the parties and from
the perusal of the record, the sole legal
question arises: which condition authorizes
the concerned Court to take cognizance of
the offence under Section 138 N.I. Act.
Section 138 N.I. Act prescribed when the
offence under Section 138 N.I. Act deemed
to be committed. For reference, under
Section 138 N.I. Act is being quoted 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 [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,
5 All. Rakesh Upadhyay Vs. State of U.P. & Anr.
625
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."

7. From the perusal of Section 138 N.I.
Act, it is clear that for the maintainability of
a complaint under Section 138 N.I. Act after
dishonour of cheque following conditions
must be satisfied:-

(I) The cheque has been presented
within a period of its validity.

(II)
After
receiving
the
information from the bank regarding the
return of the cheque, the payee or holder, in
due course of the cheque, makes a demand
of the cheque amount in writing within a
period of 30 days.

(III) The cheque Drawer failed to
pay the cheque amount to the cheque drawee
within 15 days from the date of receiving the
above notice.

8. Similarly, Section 142 N.I. Act
prescribes the condition which authorizes a
Court to take cognizance under Section 138
N.I. Act. For reference, Section 142 of N.I.
Act is quoted as under:-

"Section
142
Cognizance
of
offences.

(1)
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:

(c) no court inferior to that of a
Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any
offence punishable under section 138.

(2) The offence under section 138
shall be inquired into and tried only by a
court within whose local jurisdiction,--

(a) if the cheque is delivered for
collection through an account, the branch of
the bank where the payee or holder in due
course, as the case may be, maintains the
account, is situated;

(b) if the cheque is presented for
payment by the payee or holder in due
course, otherwise through an account, the
branch of the drawee bank where the drawer
maintains the account, is situated."

9. From the perusal of Section 142 N.I.
Act, it is clear that certain conditions must
be fulfilled despite anything contained in
Cr.P.C.. Only then can the Court take
cognizance of the offence under Section 138
N.I. Act. These conditions are as follows:-

(I) A complaint must be filed in
writing by a payee or holder in due course of
the cheque.

(II) Such complaint must be made
within one month from the expiry of 15 days
after receiving the notice for demand by the
drawer of the cheque, and only the Judicial
Magistrate of Ist Class to try the offence
under Section 138 N.I. Act.

(III) Only that Court will have
jurisdiction to entertain a complaint where
the payee or holder in due course maintains
his account when the cheque in question was
delivered for collection through his account.

10. It is also clear from Section 142
N.I. Act that the procedure under this section
will prevail over the procedure in the
626 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal procedure code. In the ordinary
course, when any complaint is filed under
Section 200 Cr.P.C., the Magistrate, after
perusal of the complaint and statement
recorded under Section 200 and 202 Cr.P.C.,
makes his opinion that prima facie case
regarding a particular offence is made out,
but in the case of an offence under Section
138 N.I. Act summons cannot be issued by
taking cognizance unless certain conditions
are fulfilled, as mentioned in Section 142
N.I. Act as well as in the proviso of Section
138 N.I. Act.

11. From the above analysis, it is clear
that while taking cognizance under Section
142 N.I. Act regarding offence under
Section 138 N.I. Act, Courts must satisfy the
fulfillment of primary conditions before
issuing summons and fulfillment of these
conditions must be mentioned in the
summoning order itself. These necessary
conditions
are
being
summarised
as
follows:-

(I) Cheque must be presented to
the bank during its validity.

(II) The payee or holder, in due
course, must give a written notice within
30 days to the cheque drawer after
receiving information from the bank
regarding the return of the cheque.

(III) The drawer of the cheque
fails to make payment of the cheque
amount despite the expiration of 15 days
from the date of receiving the written
notice sent by the payee or holder in due
course.

(IV) The complaint must be filed
within one month after the expiry of 15
days from receiving the written notice
from the payee or holder in due course of
cheque.

(V) If the complaint is filed
beyond one month from the date of cause
of action (the expiry of 15 days from
receiving the notice by the cheque
drawer) and the Court condones the
delay. This order must be reflected in the
summoning order itself.

(VI) If no date of service of
demand notice is mentioned in the
complaint, the Court can presume service
as per the law laid down by this Court in
the case of Rajendra vs. State of U.P. and
another in Application U/S 482 No.45953
of 2023.

(VII) Apart from the above
conditions, the cheque number and date,
date of sending the notice and mode of
sending the notice must also be mentioned
in the summoning order.

12. The above-mentioned guidelines
are being issued, considering the facts that
taking advantage of technical lacuna in the
summoning orders, dishonest drawers of
cheques get interim order from High Court
and thereafter proceedings under the N.I.
Act remain kept pending for number of
years though the Hon'ble Apex Court
specifically directed in the case of In Re:
Expeditious Trial of Cases under Section
138 of N.I. Act, 1881 in Suo Motu Writ
Petition (Crl.) No.2 of 2020, that trial under
Section 138 N.I. Act should be concluded
expeditiously.

13. Hon'ble Apex Court, in the case of
Kusum Ingots and Alloys Ltd. Vs. Pennar
Peterson Securities Ltd. and others,
reported in 2000 (2) SCC 745 had also
observed that before taking cognizance
under Section 138 N.I. Act, conditions
mentioned in paragraph No. 10 must be
satisfied. Paragraph no.10 of the above
judgment is being quoted as under:-

"10. On a reading of the
provisions of Section 138 of the NI Act, it is
5 All. Rakesh Upadhyay Vs. State of U.P. & Anr.
627
clear that the ingredients which are to be
satisfied for making out a case under the
provision are :

1. a person must have drawn a
cheque on an account maintained by him in
a bank for payment of a certain amount of
money to another person from out of that
account for the discharge of any debt or
other liability;

2. that 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;

3. that cheque is returned by the
bank unpaid, either because of the amount
of money standing to the credit of the
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 the bank;

4. the payee or the holder, in due
course of the cheque, 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 15 days of the receipt of
information by him from the bank regarding
the return of the cheque as unpaid;

5. the drawer of such cheque fails
to make payment of the said amount of
money to the payee or the holder in due
course of the cheque within 15 days of the
receipt of the said notice;"

14. It would be appropriate to mention
here that this Court, in the case of Rajendra
Vs. State of U.P. and another in
Application U/S 482 No.45953 of 2023 by
judgment dated 25.01.2024 has already held
that written notice mentioned under Section
138 N.I. Act includes notice through e-mail
or Whatsapp. Paragraph Nos.10 & 18 of
judgment mentioned above is quoted as
under:-

"10. The above judgement of the
Hon'ble Supreme Court was delivered in the
year 2008 considering the efficiency of
service of the post office at that time. Even
Hon'ble Apex Court has not presumed that
30 days will always be counted for service
of notice if the same is sent through
registered post and is not returned. Now,
almost 15 years have passed, much water
has flown under the bridge and delivery of
letters through the postal department has
become so fast that presuming 30 days for
service delivery for the registered post does
not appear correct. Even the Order 5 Rule
9(5) of C.P.C. provides presumption for
delivery of service of summons through
registered post, if not received back within
30 days from the date of issuance of
summons cannot be equated with the present
service of notice under N.I. Act because
giving of notice cannot be equated with the
service of notice under N.I. Act, and if such
pleas are allowed, then dishonest drawer of
the cheque may get an unnecessary
advantage, especially when drawer of the
cheque did not denied the receiving of
statutory notice.

18. In the present time of
digitalization and computerisation, delivery
of post has become so fast that the Court can
presume
that
a
correctly
addressed
registered post has been served upon the
addressee within a maximum period of 10
days if the date of service is not mentioned
in the complaint. After the initiation of the
online post tracking system, it is too easy to
know the date of delivery of the registered
post. In the ordinary course of business, the
registered letter is delivered within 3 to 10
days if correctly addressed. Therefore, this
Court holds that if no date of service has
been mentioned in the complaint, then the
Court can presume under Section 114 of
the Evidence Act and Section 27 of the
General Clause Act that notice would have
628 INDIAN LAW REPORTS ALLAHABAD SERIES
been served within ten days from the date
of its dispatch. Though it is always open to
the drawer of the cheque to take the plea
during trial, the notice was never served
upon him."

15. In the present case, from the
perusal of the summoning order dated
22.11.2023, it is explicit that the conditions
mentioned above were not discussed as the
cheque number, date of the notice, mode of
service of notice, and fulfilment of the
necessary conditions were not mentioned.

16. Impugned order ex-facie suffers
from infirmity and, therefore, deserves to be
set aside.

17. In view of the above, the order
dated
22.11.2023
passed
by
learned
Additional Chief Judicial Magistrate-II,
Jaunpur, is hereby set aside. The learned
Magistrate is directed to pass a fresh order
in light of the observation made above
within one month from the date of receiving
a copy of this order.

18. With the observation mentioned
above, the present application is allowed.

19. Registrar (Compliance) is directed
to circulate a copy of this order to all District
Judges of the State of Uttar Pradesh; they
will further apprise their subordinate
Judicial
Officers
that
the
essential
ingredients that must be reflected in the
summoning order passed for the offence
under Section 138 N.I. Act.
----------
(2024) 5 ILRA 628
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.05.2024

BEFORE

THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Application U/S 482. No. 42855 of 2023

Shishupal Singh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Raghuvansh Misra

Counsel for the Opposite Parties:
G.A., Sri Prashant Kumar Singh

A. Criminal Law-Criminal Procedure Code,
1973-Section 482 -Indian Penal Code,
1860-Sections 147, 308, 323, 504 & 506Challenge
to-summoning
order-FIR
registered based on complaint, followed by
a police investigation that led to a Closure
Report-the closure report was challenged
by a protest petition, which the magistrate
treated as a complaint, leading to the
summoning of the applicants for trial-The
court
observed
that
there
were
discrepancies
and
lack
of
sufficient
evidence to support the complaint-The
court set aside the lower court's order and
the case back for fresh decision.(Para 1 to
15)

B. Issuing a summoning order in a criminal
case is a serious judicial function and
cannot be done mechanically. The order
must reflect a thorough evaluation of the
material on record. When a protest petition
is filed against a police closure report, the
magistrate must ensure that the petition
satisfies the requirements of a complaint
u/s 2(d) CrPC. The magistrate must
carefully consider whether the allegations
in the protest petition , supported by
evidence, are sufficient to take cognizance
of offence u/s 190(1)(a) CrPC. Simply
treating a protest petition as a complaint
without
scrutiny
violates
procedural
law.(Para 10, 12, 13)

The application is allowed. (E-6)

List of Cases cited: