# Ram Sharan Singh v. State of U.P. & Anr

- **Citation:** (2024) 12 ILRA 525
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-19
- **Case number:** Application U/S 482 No. 24124 of 2021
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sharan-singh-v-state-of-u-p-anr-51239
- **Pages:** 41

## Headnote

Criminal Law-Criminal Procedure Code,
1973
-
Section
482
-
Negotiable
Instruments Act, 1881 - Section 138 -
Cheque dishonour - "Legally enforceable
debt or liability" - Advance cheque not
issued in discharge of existing debt -
Complaint not maintainable - Mandatory
inquiry under Section 202 Cr.P.C. not held
- High Court's inherent powers under
Section 482 Cr.P.C. discussed-Proceedings
and
Summoning
order
quashedApplication allowed. (Paras 91 to 97)

HELD:
In the exercise of this wholesome power, the
High Court is entitled to quash a proceeding if it
comes to the conclusion that allowing the
proceeding to continue would be an abuse of
the process of the Court or that the ends of
justice require that the proceeding ought to be
quashed. The saving of the High Court's
inherent powers, both in civil and criminal
matters, is designed to achieve a salutary public
purpose which is that a court proceeding ought
not to be permitted to degenerate into weapon
of harassment or persecution. In a criminal
case,
the
veiled
object
behind
a
lame
prosecution, the very nature of the material on
which the structure of the prosecution rests and
the like would justify the High Court in quashing
the proceeding in the interest of justice. The
ends of justice are higher than the ends of mere
law though justice has got to be administered
according to laws made by the legislature. The
compelling
necessity
for
making
these
observations is that without a proper realization
of the object and purpose of the provision which
seeks to save the inherent powers of the High
Court to do justice between the St. and its
subjects, it would be impossible to appreciate
the
width
and
contours
of
that
salient
jurisdiction. (Para 91)
526 INDIAN LAW REPORTS ALLAHABAD SERIES
It is a settled canon of law that this Court has
inherent powers to prevent the abuse of its own
processes, that this Court shall not suffer a
litigant utilizing the institution of justice for
unjust means. Thus, it would be only proper for
this Court to deny any relief to a litigant who
attempts to pollute the stream of justice by
coming to it with his unclean hands. Similarly, a
litigant
pursuing
frivolous
and
vexatious
proceedings cannot claim unlimited right upon
court's time and public money to achieve his
ends. (Para 92)

It is well settled that inherent powers under
Section 482 Cr.P.C. have to be exercised to
secure the ends of justice, to prevent abuse
of process of any Court and to make such
orders as may be necessary to give effect to
any order under the Cr.P.C. depending upon
the facts of given case. In the instant case,
it appears that there is miscarriage of
justice, thus relying upon the Judgement of
Hon'ble Apex Court in the matter of West
Bengal St. Electricity Board v. Dilip Kumar
Ray (supra) as well as in the interest of
justice and to protect the interest of
applicant,
who
is
victimized
of
false
accusation
due
to
personal grudge
of
opposite party no.2, who has managed the
complaint
without
disclosing
the
real
relationship of lawyer and client, normally
this Court would have directed to get the
matter investigated by C.B.I. but seeing the
arguments as placed by learned counsel for
the parties and the conduct of opposite party
no.2, the matter is being decided finally to
secure the ends of justice. (Para 93)

In the facts of the present case, where it has
been established that opposite party no.2 has
not approached the Court with clean hand,
noticing his conduct as is clear from the records,
this Court finds it to be a fit case for exercising
powers under Section 482 Cr.P.C. Keeping in
mind that criminal prosecution is a serious
matter, it effects the liberty of a person, no
greater damage can be done to the reputation
of a person than dragging him in a criminal
case, continuance of prosecution would be
nothing but an abuse of the process of law and
will be a mental trauma to the applicants, it
becomes necessary for this Court to invoke
inherent powers under

## Text

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12 All. Ram Sharan Singh Vs. State of U.P. & Anr.
525
there was no scope for interference by the
appellate court to ignore the adoption deed
executed on 25.10.1974.

16.
The
Deputy
Director
of
Consolidation has not decided the revision
in proper manner and maintained the
appellate order for recording the name of
contesting respondent in place of Richpal
Singh.

17. This Court in the case reported in
(2024) 164 RD 226, Munder vs. Deputy
Director of Consolidation and Others has
considered the provisions of Section 16 of
the Hindu Adoptions and Maintenance Act,
1956 as well as Sections-17 of the
Registration
Act
and
has
held
that
registration was not required prior to
1.1.1977 with respect to execution of
adoption deed.

18. Considering the entire facts and
circumstances of the case, as mentioned
above, the impugned appellate order dated
16.9.1983 and the revisional order dated
19.6.1984 are liable to be set aside and the
same are hereby set aside.

19. The writ petition stands allowed.
The order passed by the Consolidation
Officer dated 4.6.1982 is hereby affirmed.

20. No order as to costs.
----------
(2024) 12 ILRA 525
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2024

BEFORE

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

Application U/S 482 No. 24124 of 2021

Ram Sharan Singh ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Ashok Kumar Singh, Sanjeev Singh

Counsel for the Respondents:
Vikas Singh

Criminal Law-Criminal Procedure Code,
1973
-
Section
482
-
Negotiable
Instruments Act, 1881 - Section 138 -
Cheque dishonour - "Legally enforceable
debt or liability" - Advance cheque not
issued in discharge of existing debt -
Complaint not maintainable - Mandatory
inquiry under Section 202 Cr.P.C. not held
- High Court's inherent powers under
Section 482 Cr.P.C. discussed-Proceedings
and
Summoning
order
quashedApplication allowed. (Paras 91 to 97)

HELD:
In the exercise of this wholesome power, the
High Court is entitled to quash a proceeding if it
comes to the conclusion that allowing the
proceeding to continue would be an abuse of
the process of the Court or that the ends of
justice require that the proceeding ought to be
quashed. The saving of the High Court's
inherent powers, both in civil and criminal
matters, is designed to achieve a salutary public
purpose which is that a court proceeding ought
not to be permitted to degenerate into weapon
of harassment or persecution. In a criminal
case,
the
veiled
object
behind
a
lame
prosecution, the very nature of the material on
which the structure of the prosecution rests and
the like would justify the High Court in quashing
the proceeding in the interest of justice. The
ends of justice are higher than the ends of mere
law though justice has got to be administered
according to laws made by the legislature. The
compelling
necessity
for
making
these
observations is that without a proper realization
of the object and purpose of the provision which
seeks to save the inherent powers of the High
Court to do justice between the St. and its
subjects, it would be impossible to appreciate
the
width
and
contours
of
that
salient
jurisdiction. (Para 91)
526 INDIAN LAW REPORTS ALLAHABAD SERIES
It is a settled canon of law that this Court has
inherent powers to prevent the abuse of its own
processes, that this Court shall not suffer a
litigant utilizing the institution of justice for
unjust means. Thus, it would be only proper for
this Court to deny any relief to a litigant who
attempts to pollute the stream of justice by
coming to it with his unclean hands. Similarly, a
litigant
pursuing
frivolous
and
vexatious
proceedings cannot claim unlimited right upon
court's time and public money to achieve his
ends. (Para 92)

It is well settled that inherent powers under
Section 482 Cr.P.C. have to be exercised to
secure the ends of justice, to prevent abuse
of process of any Court and to make such
orders as may be necessary to give effect to
any order under the Cr.P.C. depending upon
the facts of given case. In the instant case,
it appears that there is miscarriage of
justice, thus relying upon the Judgement of
Hon'ble Apex Court in the matter of West
Bengal St. Electricity Board v. Dilip Kumar
Ray (supra) as well as in the interest of
justice and to protect the interest of
applicant,
who
is
victimized
of
false
accusation
due
to
personal grudge
of
opposite party no.2, who has managed the
complaint
without
disclosing
the
real
relationship of lawyer and client, normally
this Court would have directed to get the
matter investigated by C.B.I. but seeing the
arguments as placed by learned counsel for
the parties and the conduct of opposite party
no.2, the matter is being decided finally to
secure the ends of justice. (Para 93)

In the facts of the present case, where it has
been established that opposite party no.2 has
not approached the Court with clean hand,
noticing his conduct as is clear from the records,
this Court finds it to be a fit case for exercising
powers under Section 482 Cr.P.C. Keeping in
mind that criminal prosecution is a serious
matter, it effects the liberty of a person, no
greater damage can be done to the reputation
of a person than dragging him in a criminal
case, continuance of prosecution would be
nothing but an abuse of the process of law and
will be a mental trauma to the applicants, it
becomes necessary for this Court to invoke
inherent powers under Section 482 Cr.P.C. in
present facts and circumstances of his case.
(para 94)

Therefore, in view of above discussion, this
Court finds a good ground for quashing the
impugned summoning order as well as entire
proceedings of the aforesaid case. (para 96)

Application allowed. (E-14)

List of Cases cited:

1. Indus Airways Pvt. Ltd. & ors. Vs Magnum
Aviation Pvt. Ltd. & anr., reported in 2014 (12)
SCC 539

2. Sunil Todi & ors. Vs St. of Gujarat & anr.,
reported in (2022) 16 SCC 762

3. Suo Moto Writ Petition (Crl.) No.2 of 2020

4. Indian Bank Association & ors. Vs U.O.I. &
ors. reported in (2014) 5 SCC 590

5. K. Ramesh Vs K. Konthandaraman reported in
(2024) SCC OnLine SC 531

6. Ripudaman Singh Vs Balakrishna reported in
(2019) 4 SCC 767

7. Surjit Singh Vs Nanak Singh, RSA No.3124 of
2004 decided on 25.09.2008 by the High Court
of Punjab and Haryana At Chandigarh

8. Dasharathbhai Trikambhai Patel Vs Hitesh
Mahendrabhai Patel, reported in (2023) 1 SCC 578

9. Sampelly Satyanarayana Rao Vs Indian
Renewable Energy Development Agency Limited
reported in (2016) 10 SCC 458

10. Sayed Sibte Haider Vs Mohammad Askari Ali
& anr., passed in Criminal Misc. Application
Under Section 482/378/407 Cr.P.C. 115 of 2018

11. Vijay Dhanuka Vs Najima Mamtaj, (2014) 14
SCC 638

12.
Abhijir
Pawar
Vs
Hemant
Madhukar
Nimbalkar & anr., (2017) 2 SCC 528

13. Kali Ram Vs St. of H.P., reported in (1973) 2
SCC 808
12 All. Ram Sharan Singh Vs. State of U.P. & Anr.
527
14. Bharat Barrel & Drum Manufacturing
Company Vs Amin Chand Pyarelal, reported in
(1999) 3 SCC 35

15. M.S. Narayana Menon @ Mani Vs St. of
Kerala & anr., reported in (2006) 6 SCC 39

16. Krishna Janardhan Bhat Vs Dattatraya G.
Hegde, reported in (2008) 4 SCC 54

17. Kumar Exports Vs Sharma Carpets, reported
in (2009) 2 SCC 513

18. Rangappa Vs Sri Mohan, reported in (2010)
11 SCC 441

19. West Bengal St. Electricity Board Vs Dilip
Kumar Ray reported in AIR 2007 SC 976

20. R.P. Kapur Vs St. of Pun.; AIR 1960 SC 866

21. St. of Haryana & ors. Vs Ch. Bhajan Lal &
ors.;1992 Supp.(1) SCC 335

22. St. of Bihar & anr. Vs P.P. Sharma & anr.;
1992 Supp (1) SCC 222

23. Zandu Pharmaceuticals Works Ltd. & ors. Vs
Mohammad Shariful Haque & anr.; 2005 (1) SCC
122

24. M.N. Ojha Vs Alok Kumar Srivastava; 2009
(9) SCC 682

25. M.N. Ojha Vs Alok Kumar Srivastava,
reported in 2009 (9) SCC 682

26. Prashant Bharti Vs St. of NCT of Delhi
reported in (2013) 9 SCC 293

27. Parbatbhai Ahir Vs St. of Gujarat reported in
(2017) 9 SCC 641

28. Monica Kumar (Dr.) anr. Vs St. of U.P.
reported in (2008) 8 SCC 781

29. Anand Kumar Mohatta Vs St. (Govt. of NCT
of Delhi), reported in (AIR) 2019 SC 210: 2018
SCC Online SC 2447

30. St. of Karn. Vs L. Muniswamy (1977) 2 SCC
699

31. Indian Oil Corp. Vs NEPC India Ltd. & ors.
reported in (2006) 6 SCC 736

32. Mr. Abhishek Gupta & anr. Vs St. of NCT of
Delhi & anr. passed in CRL MC 1064/2022 and
CRLMA 4586/2022 decided on 16.03.2022

33. Karnataka Emta Coal Mines Limited & ors.Vs
Central Bureau of Investigating reported in 2024
SCC Online SC 2250

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Sanjeev Singh assisted
by Mr. Ramesh Kumar Singh and Mr.
Ashok Kumar Singh, learned counsels for
the
applicant,
Mr.
Ram
Sharan
Singh/applicant appearing in person, Mr.
Vikas Singh, learned counsel for opposite
party no.2 as well as Mr. Amit Singh
Chauhan and Mr. Mayank Awasthi, learned
counsels for the State.

2. This application u/s 482 has
been filed by the applicant with the prayer
to
quash
the
entire
proceedings
of
Complaint
Case
No.1738/2020, under
Section 138 of Negotiable Instrument Act
(Alok Singh Niranjan vs. Ram Sharan
Singh) as well as quash the summoning
order dated 13.01.2021 issued by the Chief
Judicial Magistrate, Jalaun, Police Station-
Kotwali Orai, District- Jalaun, pending in
the Court of Judicial Magistrate, Jalaun.

3. Brief facts of the case are that
the opposite party no.2 filed a complaint
under Section 138 Negotiable Instruments
Act, 1881 (hereinafter referred to as the
Act) on 03.08.2020 against the applicant
stating therein that the opposite party no.2
is working as Assistant Teacher at Janta
Vidya Mandir Inter College, Orai-Jalaun.
The Manager of the aforesaid is Dilip
Kumar Singh, who is real brother-in-law
528 INDIAN LAW REPORTS ALLAHABAD SERIES
(Saadhu Bhai) of the applicant. Due to the
good relations between the two, they used
to have money transactions with each other.
It has been further alleged that on 25th
September, 2016, the applicant requested
for 10 to 15 lakh rupees from opposite
party no.2 as he wanted to purchase a plot
at Allahabad. The applicant requested the
opposite party no.2 to make arrangements
for the money, for which he was ready to
pay interest also. It has been further alleged
that as relations between the two were good
and
they
had
maintained
honest
relationship of money transactions with
each other, therefore, opposite party no.2
requested the applicant to come to his
house to take the money on 02.10.2016,
hence the applicant on the same date i.e.
02.10.2016, reached the residence of
opposite party no.2 at about 4:00 pm and
took the money. Rs.12,25,000/- were paid
to the applicant in the presence of one
Vinod Kumar Srivastava son of Shiv
Shankar Srivastava and one Hamir Singh
son of Sri Ratan Singh both residents of
Jalaun. The applicant had promised to
return the amount in January, 2017 but he
did not do so, taking an excuse that he
could not purchase the plot due to
demonetization (note bandi) on 08.11.2016.
Since then, the applicant is taking some or
the other excuse for not returning the
money. When the opposite party no.2
exerted pressure by stating that he will take
legal recourse in case the applicant did not
return the money, the applicant promised to
make some arrangements to return the
money.

4. On 19.03.2020, the applicant
reached the residence of opposite party
no.2 and gave a cheque bearing "Cheque
No.390917" issued from SBI, Branch High
Court
Allahabad
at
Allahabad
of
Rs.11,00,000/- which was presented by the
opposite party no.2 at Allahabad Bank,
Orai to be deposited in the Account
No.00000020222722742.
The
aforesaid
cheque was returned with an information
"insufficient fund" on 21.04.2020.

5. After coming to know about the
dishonor of the aforesaid cheque, the
applicant informed the opposite party no.2
that he will return the money after
lockdown due to COVID-19 and requested
him to present the cheque on 15.06.2020.
As requested by the applicant, the opposite
party no.2 presented the cheque on
15.06.2020 and the same was again
returned on 16.06.2020 with an information
that there was "insufficient fund". The
applicant was well aware of the fact that
there was insufficient fund in his account,
however he had asked the opposite party
no.2 to present the cheque again with a
planned manner having no intention to
return the money.

6. A legal notice was sent through
registered post on 24.06.2020 and the same
was
received
by
the
applicant
on
08.07.2020, however no money was
returned, therefore, the present complaint
was filed. The affidavit in the aforesaid
complaint was filed on 07.09.2020 and the
applicant
has
been
summoned
on
13.01.2021.

7. The following contentions have
been raised by learned counsel for the
applicant :-

(i) The complaint has been
filed
with
malicious
intention
which is clear from the fact as the
opposite party no.2 has concealed
his relationship of being client of
the applicant as well as the fact that
the relations between opposite
12 All. Ram Sharan Singh Vs. State of U.P. & Anr.
529
party no.2 and applicant were due
to one Dilip Kumar Singh who
happens to be brother-in-law of the
applicant and was Manager of the
Institution in which the opposite
party no.2 was working as Assistant
Teacher at the relevant point of
time, whereas the real fact is that in
the year 1997 Mr. Narendra Pal
Singh was the Manager of the said
Institution whereas at the time of
filing the complaint Sri Dilip
Kumar Singh was the Manager.
(ii) The opposite party no.2
had approached the applicant to
engage him as a counsel in Writ
Petition No.4926 of 1997 (Alok
Singh
Niranjan
vs.
District
Inspectors of Schools and Others)
filed by opposite party no.2 before
this Court. The aforesaid writ
petition was disposed of vide order
dated 29.11.2001 directing the
respondents to pay the salary for
the period the petitioner discharged
his duty in the Institution. After the
aforesaid order, the applicant and
the opposite party no.2 were not in
contact from 2002 till January,
2017.
(iii) The opposite party
no.2
again
approached
the
applicant to file Writ No.11135 of
2018 (Alok Singh Niranjan vs.
State of U.P. and Others) for
regularization of his service. The
same was disposed of vide order
dated 03.05.2018 with a direction
to the concerned respondent to
consider the petitioner's claim for
regularization, in accordance with
law within a period of three
months. As the claim of the
petitioner was rejected by the
concerned respondent, therefore,
opposite party no.2 requested the
applicant to file Writ Petition
No.1250 of 2020 (Alok Singh
Niranjan vs. State of U.P. and
Others) which is still pending
before this Court. Thus, from the
aforesaid, it is clear that the
opposite party no.2 has deliberately
and maliciously concealed his
relations of client and lawyer which
clearly
shows
his
mala
fide
intention of framing the applicant
in a false case.
(iv) The opposite party no.2
had come to applicant's house in
February, 2020 to inquire about his
matter which was still pending and
the applicant had expressed that he
wants to purchase a car, on which
the opposite party no.2 informed
the applicant that he intends to sell
his car (Innova Crysta, 2019
model) which had run 10,000 kms
only. The opposite party no.2 stated
that he had incurred huge expenses
in the past four years for his
daughter's and son's marriages,
repair and renovation work of his
house as well as purchase of the
aforesaid car. He was in strong
need of money in order to pay back
his debts, therefore, he wanted to
sell his Innova Crysta car. The
pictures and videos of the said car
were shown to the applicant and a
demand of Rs.15,00,000/- for the
vehicle was raised. The applicant
stated that he would only pay
Rs.12,00,000/- for the vehicle on
which the opposite party no.2
requested for time to think on the
offer as made by the applicant for
purchase
of
the
car
in
Rs.12,00,000/-.
530 INDIAN LAW REPORTS ALLAHABAD SERIES
(v) After one month, the
applicant and opposite party no.2
agreed
on
the
amount
of
Rs.12,25,000/- as price for the
Innova car. On 20.03.2020, the
opposite party no.2 along with his
colleague Vinod Kumar Srivastava,
Assistant Teacher at Janta Vidya
Mandir Inter College, Orai came to
the house of the applicant in
relation
to
some
work.
The
opposite party no.2 requested for
the payment for purchase of the car
on which cash of Rs.1,25,000/- was
paid
and
a
cheque
of
Rs.11,00,000/-
bearing
Cheque
No.390917 was given to the
opposite party no.2 by the applicant
requesting that the same may be
presented to the bank only when
the car loan, as to be applied by the
applicant, was sanctioned and the
money accordingly dispersed in his
account. In so many words, the
applicant had indicated the opposite
party no.2 to present the cheque
only when the loan is sanctioned
and information regarding this was
to be given by the applicant to
opposite party no.2. The aforesaid
was possible due to the clientlawyer trust relationship as built
between the applicant and the
opposite party no.2. Thus, the
cheque was issued as an advance
payment for purchase of Innova
car.
(vi) It was agreed between
the parties that the possession of
the Innova Crysta car will be given
to the applicant only when full
amount is received by the opposite
party no.2.
(vii) In this regard, a
consent/agreement
letter
was
prepared on 20.03.2020 which was
signed by applicant as well as
opposite party no.2 in the presence
of Vinod Kumar Srivastava son of
Sri Shivshankar Srivastava as well
as Mr. Vimlendra Kumar son of Sri
Chhabiram Pal resident of District
Moradabad who was also a client
of the applicant.
(viii)
The
agreement
between the applicant and the
opposite
party
no.2
was
a
contingent contract under Section
31 of the Indian Contract Act, 1872
and as the condition of grant of car
loan in favour of applicant was not
fulfilled, therefore, such contract
became void as per Section 32 of
the Indian Contract Act, 1872
(hereinafter referred to as I.C.A.).
(ix) Learned counsel for the
applicant further submits that as per
Section 65 of the I.C.A., it was the
obligation of the opposite party
no.2 to return the cash amount of
Rs.1,25,000/- as well as the cheque
of Rs.11,00,000/- which he had
received from the applicant on
20.03.2020 as the consideration in
the said agreement had now turned
void.
(x) When the applicant
asked the opposite party no.2 for
returning him the cash amount of
Rs.1,25,000/-
along
with
his
cheque bearing Cheque No.390917,
he assured that he will return the
same after the lock down when the
pandemic of COVID 19 comes to
an end. The opposite party no.2
instead of returning the cash and
the cheque, started pressurizing the
applicant to get the case of
regularization, which is pending,
decided.
12 All. Ram Sharan Singh Vs. State of U.P. & Anr.
531
(xi) In order to exert
pressure upon the applicant, the
opposite party no.2 instead of
returning the cheque, presented the
same in the bank on 21.04.2020
and then on 15.06.2020 but the
same
was
returned
due
to
insufficient funds.
(xii) The opposite party
no.2 sent a notice under Section
138 N.I. Act on 24.06.2020 based
on a false and concocted story. In
the said notice it was mentioned
that the brother-in-law of the
applicant was Manager of the
Institution in 1997 where the
opposite party no.2 was working as
Assistant Teacher which was the
basis of relation which was formed
between the applicant and the
opposite party no.2 but as already
stated, the reality was that in the
year 1997 one Narendra Pal Singh
was the Manager of the said
Institution.
The
aforesaid
fact
shows the conduct of the opposite
party no.2 and falsifies the entire
story as narrated in the complaint.
(xiii) In the complaint,
wrong facts have been mentioned
about Rs.12,25,000/- being given
by opposite party no.2 in cash to
the applicant on 02.10.2016 in the
house of opposite party no.2 in the
presence
of
Vinod
Kumar
Srivastava and Sri Hamir Singh. It
is relevant to mention that Vinod
Kumar Srivastava who is working
as Assistant Teacher in the same
Institution has also signed the
consent letter dated 20.03.2020 and
Hamir Singh is brother-in-law of
opposite party no.2.
(xiv) Presuming that the
opposite party no.2 has stated that
he
arranged
the
cash
of
Rs.12,25,000/- within five working
days creates suspicion and doubt as
to how and from where such huge
amount could be managed, thus
falsifying the entire version of the
complaint.
(xv) In the complaint as
well as the notice, it has been
mentioned that the applicant and
the opposite party no.2 had long
history of money transactions.
However, except the fees as paid by
opposite party no.2 as client to his
lawyer/applicant, there is no other
transaction between the two. The
fact of client-lawyer relationship
has been deliberately concealed by
the applicant hence the complaint
has not been filed with clean
intention.
(xvi) Learned counsel for
the applicant further submits that
the story as narrated in the
complaint also appears to be
doubtful
as
at
the
time
of
demonetization, how could such a
huge amount be arranged by the
opposite party no.2 has also not
been disclosed. The applicant does
not have any plot nor is a property
dealer, therefore, it cannot be said
that any amount has been received
by him from opposite party no.2 for
purchasing a plot.
(xvii) Learned counsel for
the applicant further submits that as
per the complaint, the applicant is
alleged
to
have
taken
Rs.12,25,000/- from opposite party
no.2 for purchase of some plot but
there is no averment with respect to
Rs.1,25,000/- which is the excess
amount other than that mentioned
in the complaint nor in the notice or
532 INDIAN LAW REPORTS ALLAHABAD SERIES
statement of the opposite party no.2
as recorded under Section 200
Cr.P.C. which raises suspicion and
goes to prove the fact of false
complaint being lodged by opposite
party
no.2
on
the
basis
of
concocted story.
(xviii)
The
online
complaint
has
been
filed
on
03.08.2020 without any affidavit
whereas the affidavit has been filed
on 07.09.2020. In paragraph no.14
of the said affidavit, it has been
stated
that
the
contents
of
paragraph no.1 to 12 of the
affidavit are true to the knowledge
of opposite party no.2, however,
the opposite party no.2 has not
mentioned the paragraphs in the
complaint case/application filed by
him under Section 138 of N.I. Act
before C.J.M., District- Jalaun in
his affidavit. This is a legal
irregularity and thus the complaint
case/application is not maintainable
in the eyes of law.
(xix) It has been alleged in
the complaint that the cheque was
returned due to insufficient funds
and a notice in this regard was
given on 24.06.2020 which was
served upon the applicant on
08.07.2020 and the complaint has
been filed on 03.08.2020 without
the affidavit. From the aforesaid, it
can be said that the alleged
complaint
is
simply
a
miscellaneous application as it does
not satisfy the ingredients of a
complaint, hence should not have
been entertained. The affidavit
being
of
07.09.2020
is
not
maintainable as it is beyond the
period of one month as required
under law.
(xx) The opposite party
no.2 has given an affidavit on
24.12.2020 with a prayer to treat
the
same
as
statement
under
Section 200 Cr.P.C. The aforesaid
affidavit cannot be considered as
statement
under
Section
200
Cr.P.C.
(xxi) Though, a list of
witnesses has been submitted by
the opposite party no.2 but the
learned C.J.M. has without calling
the
witnesses
to
record
their
statements under Section 202 of
Cr.P.C. has passed the impugned
summoning order on 13.01.2021
which is against the mandatory
provisions of law. It is also to be
noted that the date of filing of list
of witnesses before the said court
and the date of issuance of
summoning order is the same,
which is again a legal irregularity
played on the part of the court
concerned.

8. Learned counsel for the
applicant submits that for purposes of
Section 138 N.I. Act, the cheque should be
issued for legally enforceable debt or other
liability. Relying upon a judgment passed
by Hon'ble Apex Court in the case of
Indus Airways Pvt. Ltd. and Others vs.
Magnum Aviation Pvt. Ltd. and Another,
reported in 2014 (12) SCC 539 the Court in
paragraph no.9 has opined that the
explanation appended to Section 138
explains the meaning of the expression
"debt or other liability" for the purpose of
Section 138. This expression means a
legally enforceable debt or other liability.
Section 138 treats dishonoured cheque as
an offence, if the cheque has been issued in
discharge of any debt or other liability. The
Explanation leaves no manner of doubt that
12 All. Ram Sharan Singh Vs. State of U.P. & Anr.
533
to attract an offence under Section 138,
there should be a legally enforceable debt
or other liability subsisting on the date of
drawal of the cheque. In other words,
drawal of the cheque in discharge of an
existing or past adjudicated liability is sine
qua non for bringing an offence under
Section 138. If a cheque is issued as an
advance payment for purchase of the goods
and for any reason purchase order is not
carried to its logical conclusion either
because of its cancellation or otherwise,
and material or goods for which purchase
order was placed is not supplied, in
considered view of the Apex Court, the
cheque cannot be held to have been drawn
for an existing debt or liability. The
payment by cheque in the nature of
advance payment indicates that at the time
of drawal of cheque, there was no existing
liability.

9. In paragraph no.15 of the aforesaid
judgment, the Apex Court has held that if a
cheque is issued as an advance payment for
purchase of the goods and for any reason
purchase order is not carried to its logical
conclusion either because of its cancellation or
otherwise and material or goods for which
purchase order was placed is not supplied by
the supplier, the cheque cannot be said to have
been drawn for an existing debt or liability.

10. In the light of the aforementioned
judgment, coupled with the facts of this case,
the cheque which was issued by the applicant as
an advance payment for the purchase of the
vehicle, cannot be said to be issued in discharge
of an existing liability and therefore the same
creates no legally enforceable debt as against
the applicant.

11. The term legally enforceable
debt has also been explained in the case of
Sunil Todi and Others vs. State of Gujarat
and Another, reported in (2022) 16 SCC
762 wherein the Court has opined that the
term "debt" also includes a sum of money.
Learned counsel for the applicant thus
emphasizes that the cheque was not issued
for payment of legally enforceable debt or
other liability as it was for the purposes of
advance payment towards purchase of
Innova car.

12. Learned counsel for the
applicant further submits that the inquiry
as required under Section 202 Cr.P.C. is
mandatory in cases where the accused
resides beyond the territorial jurisdiction
of the concerned Magistrate before
whom the complaint is made. Placing
reliance upon the judgment in the case of
Suo Moto Writ Petition (Crl.) No.2 of
2020, the Apex Court has stated that the
inquiry to be held by the Magistrate
before issuance of summons to the
accused residing outside the jurisdiction
of the court cannot be dispensed with. It
has
been
recommended
that
the
Magistrate should come to a conclusion
after holding an inquiry that there are
sufficient grounds to proceed against the
accused.

13. Learned counsel for the
applicant thus submits that in view of the
aforementioned, it is necessary for the
Magistrate to conduct an inquiry on receipt
of complaints under Section 138 of the Act
to arrive at sufficient grounds to proceed
against the accused in cases where the
accused resides beyond the territorial
jurisdiction of the Magistrate Court.

14. Learned counsel for the
opposite party no.2 submits that the
complaint as filed by the opposite party
no.2 under Section 138 of N.I. Act fulfills
the ingredients as required i.e. :-
534 INDIAN LAW REPORTS ALLAHABAD SERIES
(i) drawing of cheque.
(ii) presentation of cheque
to the bank.
(iii)
return
of
cheque
unpaid by the drawee bank.
(iv) giving notice in writing
to the drawer of the cheque
demanding payment of a cheque
(v) failure of the drawer to
make payment within 15 days of
receipt of notice.

15. Once cheque has been signed
and issued in favour of the holder of the
cheque
then
there
is
a
statutory
presumption under Section 139 of N.I Act
that the cheque was issued in discharge of a
legally enforceable debt or liability hence,
there is sufficient material on record to
show that the prosecution under Section
138 of N.I. Act has been validly instituted
by the opposite party no.2.

16. He further submits that no such
agreement was entered into between the
applicant and the opposite party no.2 but
instead the applicant who was his lawyer
had taken his signatures on blank papers
and the same has been used to procure the
agreement on which the applicant has
placed reliance, thus the agreement is a
manufactured document. One of the alleged
witnesses namely Vinod Kumar Srivastava
had also engaged the applicant as lawyer,
therefore, the applicant had blank papers
bearing his signature which has been used
for manufacturing the alleged agreement.

17. He further submits that the
opposite party no.2 has given money to the
applicant as the relations between the two
were cordial because opposite party no.2
knew the applicant's Saadhu Bhai-Dilip
Kumar Singh who was the Manager of the
Institution
where
opposite
no.2
was
working as Assistant Teacher and there is
no mala fide intention on his part in filing
the present complaint. The provisions of
I.C.A. do not apply in the present case as
the agreement as alleged to have been
entered into between the applicant and
opposite party no.2 is a manipulated one.
The opposite party no.2 does not own any
Innova car, therefore, there is no question
of entering into any such agreement of
selling Innova car.

18. Learned counsel for the
opposite party no.2 further submits that
there is no illegality in summoning the
applicant as the complaint under Section
138 of N.I. Act when presented before the
court concerned shall be scrutinized by the
concerned court and if the complaint is
accompanied by an affidavit and the
affidavit and the documents, if any, are
found to be in order, the court concerned
shall proceed to take cognizance and direct
for issuance of summons. The complaint so
filed by the applicant fulfils all the
ingredients of Section 138 N.I. Act,
therefore, the same was scrutinized and the
applicant has been summoned. In support
of his submissions, he has relied upon a
judgement passed by the Hon'ble Apex
Court in the case of Indian Bank
Association and Others vs. Union of India
and Others reported in (2014) 5 SCC 590.

19. Learned counsel for the
opposite party no.2 further submits that the
applicant has not denied the fact that he has
handed over the aforesaid cheque to the
opposite party no.2 nor has denied his
signatures on the same, hence, in view of
the judgment passed by the Hon'ble Apex
Court in the case of K. Ramesh vs. K.
Konthandaraman reported in (2024) SCC
OnLine SC 531, even if a blank cheque
leaf is voluntarily signed and handed over
12 All. Ram Sharan Singh Vs. State of U.P. & Anr.
535
by the accused towards some payment, it
would attract the presumption under
Section 139 of N.I. Act and in the absence
of any cogent evidence to show that the
cheque was not issued in discharge of debt,
the presumption would hold good.

20. Relying upon a judgment of
Sunil Todi and Others vs. State of
Gujarat & Another reported in (2022)
16 SCC 762, learned counsel for the
opposite party no.2 submits that the
evidence of complainant can be given by
him on an affidavit. The Court has no
reason for insisting on the evidence of
witnesses
to
be
taken
on
oath.
Consequently in the aforesaid decision,
it has been held that Section 202 (2)
Cr.P.C. is inapplicable to complaints
under Section 138 N.I. Act in respect of
the examination of witnesses on oath.
The Court further held that evidence of
witnesses on behalf of complainant can
be permitted on oath. If the Magistrate
holds an inquiry himself, it is not
compulsory that he should examine the
witnesses and in suitable cases the
Magistrate can examine the documents
to satisfy that there was sufficient
grounds for proceeding under Section
202 Cr.P.C.

21. Relying upon a judgment of
Ripudaman Singh vs. Balakrishna reported
in (2019) 4 SCC 767, the learned counsel for
opposite party no.2 submits that the present
application is not maintainable to test
allegations with regard to correctness of an
agreement to sell which can only be tested in
trial when evidence is adduced in this regard.
In view of the above, the present application
deserves to be dismissed.

22. Heard learned counsel for the
parties and perused the record.
(i) From the records as well
as submissions of the learned
counsel for the parties, this Court
finds that the fact regarding lawyerclient relationship has not been
disclosed by the opposite party no.2
in the complaint, thus the opposite
party
no.2
while
filing
the
complaint has not approached the
court concerned with clean hands.
(ii) Learned counsel for the
opposite party no.2 has admitted
about the long standing relationship
between him and the applicant, due
to relative of applicant being
Manager of the Institution where
opposite party no.2 was working as
an Assistant Teacher. However, the
aforesaid fact has been denied by
the applicant as at the relevant
point of time when the opposite
party no.2 had approached the
applicant for engaging him as
counsel
in
his
matters,
the
applicant's relative was not the
Manager of the said Institution. Be
that as it may, the fact of nondiscloser
of
lawyer-client
relationship itself proves that the
complaint has been filed with mala
fide intention and hence should not
have been entertained.
(iii) Learned counsel for
the opposite party no.2 has denied
the alleged agreement between the
parties, however, in this regard no
statements
of
the
witnesses
mentioned in the agreement have
been recorded nor they have been
examined on oath to prove the
same. It is for the first time in the
counter affidavit a stand has been
taken of engaging the applicant as a
lawyer in few cases by the opposite
party no.2 as well as alleged
536 INDIAN LAW REPORTS ALLAHABAD SERIES
witness of the agreement-Vinod
Kumar Srivastava from whom the
applicant had taken blank papers.
This Court finds it difficult to
believe the opposite party no.2 as
he had not disclosed about this
relationship
in
the
complaint,
therefore, he cannot turn around
and take the aforesaid stand at this
juncture.
(iv) The averment about
using blank papers for purposes of
agreement also cannot be taken as
correct as signatures of witnesses
are there on the same alleged blank
paper, which cannot be possible in
case it is believed that blank paper
was used.
(v) It is settled preposition
of law that if a person admits his
signature on some document then
the onus shifts on the person who
admits
his
signatures
on
a
document to prove that it was
obtained on blank papers or was
taken under undue influence or
under pressure. The aforesaid fact
has been held in the case of Surjit
Singh vs. Nanak Singh, RSA
No.3124 of 2004 decided on
25.09.2008 by the High Court of
Punjab
and
Haryana
At
Chandigarh.
(vi) In the facts of the
present case, the opposite party
no.2 has for the first time spoken
about signatures on blank papers
being taken by the applicant hence,
it was for him to mention the
aforesaid fact in the complaint as
filed by him that the signatures on
such blank papers were taken under
undue influence or under pressure.
It is admitted position that the
opposite party no.2 being client of
the applicant had signed the papers
not
being
under
any
undue
influence or under any pressure and
the argument as placed that the
blank papers have been used for the
purpose of the agreement which is
now being denied by the opposite
party no.2 could not be believed as
he
has
not
disclosed
the
relationship of client and lawyer in
his complaint.

23. For a complaint to be
entertained under Section 138 of N.I. Act,
the Court has to see the aforesaid :-

(i) Firstly that the cheque
has been given in favour of the
applicant, the same is presented to
the bank, it is returned unpaid, a
notice in writing is given to the
drawer demanding payment of the
cheque amount and failure of
withdrawer
to
make
payment
within 15 days of receipt of notice.
(ii) Once the cheque has
been signed and issued in favour of
holder of cheque, there is a
statutory
presumption
under
Section 139 of the N.I. Act that the
cheque was issued in discharge of
legally enforceable debt or liability.

24. Thus, in the present case it is to
be seen whether the cheque as given by the
applicant was in discharge of a legally
enforceable debt/liability or not.

25.

For
the
aforesaid,
the
terminology "legally enforceable debt" has
to be understood. A "legally enforceable
debt" refers to a financial obligation
recognized by law where borrower is
obligated to repay the lender. This type of
debt meets specific legal criteria that allows
12 All. Ram Sharan Singh Vs. State of U.P. & Anr.
537
the lender to seek legal recourse if the
borrower fails to repay.

26. From the above discussion, it
is clear that for commission of an offence
under Section 138 N.I. Act, the cheque that
is dishonoured must represent a legally
enforceable debt not only on the day when
it was drawn but also on the date of its
maturity/presentation.
If
the
cheque
presented for collection of total value of the
cheque without endorsing the part payment
made by the drawer is dishonoured no
offence under Section 138 N.I. Act would
be attracted, as being held in the case of
Dasharathbhai
Trikambhai
Patel
vs.
Hitesh Mahendrabhai Patel, reported in
(2023) 1 SCC 578.

27. In the present case, the
opposite party no.2 has mentioned that he
had given Rs.12,25,000/- in cash to the
applicant for purposes of purchasing
property. Although, in the complaint as well
as notice, the complainant has spoken about
returning of Rs.11,00,000/- by giving a
cheque in this regard but there is no
whisper about Rs.1,25,000/-. In case it is
taken that Rs.1,25,000/- has already been
paid, therefore, as part payment was
already made, the complaint under Section
138 N.I. Act could not have been
entertained.

28. Be that as it may, once the
complainant i.e. opposite party no.2 has not
disclosed the lawyer and client relationship
between him and the applicant and as for
the first time admitted the aforesaid fact in
his counter affidavit, the story in the
complaint of giving advance in cash
without disclosing as to how and from
where such an arrangement was made also
gives benefit to the applicant who under
such relationship as admitted by the
opposite party no.2 in his counter affidavit
has mentioned about an agreement which
cannot be disbelieved by this Court.

29. This Court finds that where
payment was made by cheque in nature of
advance payment, it indicates that at the
time of withdrawal of cheque, there was no
existing liability as such the complaint
under Section 138 N.I. Act is not
maintainable.

30. The aforesaid fact has been
held in the case of Indus Airways Pvt. Ltd
and Others vs. Magnum Aviation Pvt. Ltd
and Another, reported in 2014 (12) SCC
539. The same was reiterated by the
Hon'ble Apex Court in the case of
Sampelly Satyanarayana Rao vs.