# Ravi Dixit v. State of U.P. & Anr

- **Citation:** (2020) 11 ILRA 68
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-23
- **Case number:** Application U/S 482 No. 14068 of 2020
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravi-dixit-v-state-of-u-p-anr-45430
- **Pages:** 4

## Headnote

(A) Civil law - Negotiable Instrument Act,
1881 - Section 138 - Dishonour of cheque ,
Section 142 - Cognizance of offences -
provision of Section 138 of the Act, 1881 -
cannot be interpreted to mean - even if
the accused refuses to make payment, the
complainant cannot file complaint -
Proviso (c) of the said Act - to see the
bona fide of the drawer of the cheque and
is with a view to grant him a chance to
make the payment - does not constitute
ingredients of offence punishable under
Section 138 - Offence is completed the
moment the cheque is dishonoured. Para -
8,10

Cheque drawn by the accused - Period of 15
days is for making payment - accused did not
make the payment and did not even appear
before the Court below for a year petitioner
replied to the notice - which goes to show that
the intention of the drawer is clear that he did
not wish to make the payment.Para - 9,12

HELD:- In this case it appears that notice was
deemed to have been served to the petitioner
and he was under an obligation to discharge his
liability which he has not done. The only object
of proviso (c) to Section 138 of the Act, 1881 is
to avoid unnecessary hardship if the drawer
wants to make payment. Hence, this Court does
not find any reason to interfere with the well
reasoned summoning order passed by the
learned Magistrate.Para - 13

Application u/s 482 Cr.P.C. dismissed.
(E -7)

List of Cases Cited:-
11 All. Ravi Dixit Vs. State of U.P. & Anr.
69

## Text

68 INDIAN LAW REPORTS ALLAHABAD SERIES
is also well settled that mere non obtaining
of permission from Magistrate further
investigation, if any, made by Police would
not be per se vitiated.

13. However, in the present case,
order of transfer of investigation has been
obtained/ passed without considering the
fact that investigation was already complete
and charge-sheet was submitted before
Magistrate. Since this material fact has not
been considered by Superintendent of
Police and further investigation has been
made at P.S. Salempur Deoria, in my view,
it amounts to gross abuse of process of law
and second charge-sheet for offences which
included the offences which were not
inflicted in earlier charge-sheet is vitiated
in law.

14. In view of above, the application
allowed. Charge-sheet dated 14.04.2005
including
summoning
order
dated
15.06.2005 are hereby quashed. This order,
however, shall not affect the proceedings
pursuant to charge sheet dated 13.01.2005
wherein summoning order was passed by
Magistrate on 29.03.2005. I also make it
clear that in case Police finds any reason to
conduct further investigation, such power
will not be construed to be restricted or
prohibited by this order and it is free to
proceed in accordance with law.

15. The application is allowed in the
manner as aforesaid.
----------
(2020)11ILR A68
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.09.2020

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
Application U/S 482 No. 14068 of 2020

Ravi Dixit ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ajay Dubey

Counsel for the Opposite Parties:
A.G.A.

(A) Civil law - Negotiable Instrument Act,
1881 - Section 138 - Dishonour of cheque ,
Section 142 - Cognizance of offences -
provision of Section 138 of the Act, 1881 -
cannot be interpreted to mean - even if
the accused refuses to make payment, the
complainant cannot file complaint -
Proviso (c) of the said Act - to see the
bona fide of the drawer of the cheque and
is with a view to grant him a chance to
make the payment - does not constitute
ingredients of offence punishable under
Section 138 - Offence is completed the
moment the cheque is dishonoured. Para -
8,10

Cheque drawn by the accused - Period of 15
days is for making payment - accused did not
make the payment and did not even appear
before the Court below for a year petitioner
replied to the notice - which goes to show that
the intention of the drawer is clear that he did
not wish to make the payment.Para - 9,12

HELD:- In this case it appears that notice was
deemed to have been served to the petitioner
and he was under an obligation to discharge his
liability which he has not done. The only object
of proviso (c) to Section 138 of the Act, 1881 is
to avoid unnecessary hardship if the drawer
wants to make payment. Hence, this Court does
not find any reason to interfere with the well
reasoned summoning order passed by the
learned Magistrate.Para - 13

Application u/s 482 Cr.P.C. dismissed.
(E -7)

List of Cases Cited:-
11 All. Ravi Dixit Vs. State of U.P. & Anr.
69
1. N. Parameswaram Unni Vs G. Kannan ,
(2017) 5 SCC 737

2. Shakti Travel and Tours Vs St. of Bih. , (2002)
9 SCC 415

3. Dashrath Rupsingh Rathod Vs St. of Mah. ,
(2014) 9 SCC 129

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri Ajay Dubey, learned
learned counsel for the petitioner and
learned A.G.A. for the State.

2. By way of this petition, the
petitioner has challenged the summoning
order dated 3.9.2019. He was supposed to
present himself on 30.11.2019.

3. The brief facts as can be culled out
from the petition are that a cheque of
Rs.5,00,000/- issued on 1.3.2019 and one
another cheque of Rs.5,98,000/- issued on
2.3.2019 were dishonoured on 28.5.2019.
The
complainant
sent
a
notice
on
11.6.2019. He did not received any money
and, therefore, on 29.6.2019 he filed the
compliant under Section 138 of Negotiable
Instrument Act, 1881 which was numbered
as Complaint Case No. 441 of 2019. The
learned Judge after discussing the dates
was satisfied that prima facie case is made
out for issuance of notice and likewise on
3.9.2019 passed the summoning order.

4. Learned counsel for the petitioner
was put to a question as to how the
summoning order passed by the Court
below
is
bad.
According
to
his
understanding, he conveys to this Court
that there is some judgment of Damodar
without citing the same. He states that as
per the provisions of Section 138 of the
Negotiable
Instrument
Act,
1881
(hereinafter referred to as 'Act, 1881') the
petitioner cannot be asked to answer the
summons as he had already filed reply and
the complaint could have been filed only
after 15 days of his reply and it was filed
before the said date.

5. Learned counsel for the petitioner has
submitted that the summoning order is
without compliance of provisions of Section
138 of the Act, 1881; the application has been
falsely implicated due to enmity and financial
dispute with the complainant and that
cheques were dishonoured as he had directed
stop of payment. It is submitted that
respondent No.2 sent notice to the applicant
on 11.6.2019 but no date of service of notice
have been mentioned in the complaint. The
petitioner has submitted that on 25.6.2019 he
had replied. The complainant, according to
the petitioner, should have waited for a period
of 15 days and should not have filed the
complaint on 29.6.2019. The petitioner was
not in know how of the summon issued. It is
submitted that complaint is a premature
complaint. If the notice was sent on
11.6.2019 and no date of service has been
mentioned, as per general clause Act, 30 days
time time would have been presumed for
service of notice and 15 days thereafter for
waiting period of payment and, then only the
complaint should have been filed is the
submission of the learned counsel for the
petitioner.

6. Once the intention of the party is
clear that he does not wish to make
payment, should the complainant wait for
15 days is the question.

7. Section 138 read with Section 142
of the Act, 1881 reads as under:

"138. Dishonour of cheque for
insufficiency, etc., of funds in the account.
70 INDIAN LAW REPORTS ALLAHABAD SERIES
--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 19
[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.]

142 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.]

(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."

8. The provision of Section 138 of the
Act, 1881 cannot be interpreted to mean
that even if the accused refuses to make
payment, the complainant cannot file a
complaint. Proviso (c) of the said Act is to
see the bona fide of the drawer of the
cheque and is with a view to grant him a
chance to make the payment.

9. In this case, the cheque was drawn
by the accused on an account maintained
by him with the bank. The period of 15
days is for making payment. In this case the
accused did not make the payment and did
not even appear before the Court below for
a year. It is in the month of August, 2020
that he has approached this Court.

10. Proviso to Section 138 of the Act,
1881 does not constitute ingredients of
offence punishable under Section 138.
Proviso to Section 138 simply postpones
11 All. Sachin Kumar Srivastava Vs. State of U.P. & Anr.
71
the actual prosecution of the offender till
such time he fails to pay the amount, then
the statutory period prescribed begins for
lodgement of complaint. The Parliament
has granted just and proper time to give to
the drawer the opportunity to pay the
amount before he could be prosecuted. The
offence is completed the moment the
cheque is dishonoured. Refer to Dashrath
Rupsingh
Rathod
Vs.
State
of
Maharashtra, (2014) 9 SCC 129.

11. The judgment in Shakti Travel
and Tours Vs. State of Bihar, (2002) 9
SCC 415, will not apply to the facts of this
case as it is averred in the complaint that
the notice was served which was replied by
the accused and, therefore, it cannot be said
that the issuance of summons is bad in the
eye of law.

12. In the case in hand, the petitioner
herein replied to the notice which goes to
show that the intention of the drawer is clear
that he did not wish to make the payment.
Once this is clarified, should the complainant
wait for the minimum period of 15 days, the
answer would be 'no'.

13. In this case, judgment in N.
Parameswaram Unni Vs. G. Kannan,
(2017) 5 SCC 737 can be relied upon as in
this case it appears that notice was deemed to
have been served to the petitioner and he was
under an obligation to discharge his liability
which he has not done. The only object of
proviso (c) to Section 138 of the Act, 1881 is
to avoid unnecessary hardship if the drawer
wants to make payment. Hence, this Court
does not find any reason to interfere with the
well reasoned summoning order passed by
the learned Magistrate.

14. Reason given by the learned
Magistrate is very clear. It is well reasoned
order which was passed on 30.11.2019. For
a period of one year, the petitioner has
chosen not to appear before the learned
Magistrate and has moved this Court now.

15. In view of the above, this petition
is dismissed with cost of Rs.15,000/- to be
deposited before the Court below. The
petitioner is aware that summons has
already been issued against him and,
therefore, he may choose to appear before
the Court below on or before 15.10.2020
failing which the Court shall be free to take
steps as provided by law.
----------
(2020)11ILR A71
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.10.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Application U/S 482 No. 14261 of 2020

Sachin Kumar Srivastava ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Kamlesh Kumar Singh

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

(A) Criminal law - Indian Penal Code,
1860 - Section 406 - Punishment for
criminal breach of trust , Section 506 -
Punishment for criminal intimidation ,
Section 420 - Cheating and dishonestly
inducing
delivery
of
property
-
no
intention of applicant to cheat at the
inception of the transaction - would
ideally and eminently give rise to a cause
of action for a suit of dissolution of
partnership and rendition of account -
Instead of adopting that course - second
opposite party approached the police -