# Shahnawaz v. State of U.P. & Anr

- **Citation:** Application U/S 482 No. 4914 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-04
- **Case number:** Application U/S 482 No. 4914 of 2020
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shahnawaz-v-state-of-u-p-anr-46188
- **Pages:** 4

## Headnote

law-
Negotiable
Instruments Act, 1881 - Section 138Code of Criminal Procedure, 1973 -
Section 482 - Inherent jurisdiction -
applicant
summoned
without
following the procedure laid down in
the case of J V Baharuni, Giriraj
Proteins
Pvt.
Ltd.
Baldevbhai
Ramjibhai Patel vs. State of Gujarat,
D
M
Finance,
Vishnubhai
Hargovinddas Patel - In a prosecution
under the Negotiable Instruments
Act,
the
compensatory
aspect
of
remedy must be given priority over
the
punitive
aspect
-
impugned
summoning order - set aside. (Para-5)

Complaint filed under section 138 of negotiable
instrument Act - allegation - applicant and
opposite party no.2 were having friendly
relations to each other, due to this the applicant
borrowed Rs.5,10,000/- - assurance that the
same will be returned after two months - time
period of two months elapsed and the applicant
did not return the aforesaid money taken by him
- cheque issued - returned due to "insufficient
funds" - legal notice to the accused - neither
1632 INDIAN LAW REPORTS ALLAHABAD SERIES
the reply was given nor any money was
returned - complaint filed . (Para-2)

HELD:- The matter is remanded to the Judge,
Additional Court to decide the summoning of
the applicant afresh in light of the judgment of
the Apex Court in the case of J V Baharuni,
Giriraj
Proteins
Pvt.
Ltd.
Baldevbhai
Ramjibhai Patel within a period of one
month. (Para-9)

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

List Of Cases Cited:-

J V Baharuni, Giriraj Proteins Pvt.
Ltd.
Baldevbhai Ramjibhai Patel vs. St. of Guj., D M
Finance, Vishnubhai Hargovinddas Patel , 2014
(10) SCC 494.

## Text

3-5 All. Shahnawaz Vs. State of U.P. & Anr.
1631
cases of Deputy Chief Controller Import
and Export Vs Roshan Lal Agarwal, 2003
(4^) ACC 686 (SC), UP Pollution Control
Board Vs Mohan Meakins, 2000 (2) JIC
159 (SC): AIR 2000 SC 1456 and Kanti
Bhadra Vs State of West Bengal, 2000 (1)
JIC 751 (SC): 2000 (40) ACC 441 (SC),
the Magistrate is not required to pass
detailed reasoned order at the time of
taking cognizance on the charge sheet,
but it does not mean that order of taking
cognizance can be passed by filling up
the blanks on printed proforma. At the
time of passing any judicial order
including the order taking cognizance on
the charge sheet, the Court is required to
apply judicial mind and even the order of
taking cognizance cannot be passed in
mechanical
manner.
Therefore,
the
impugned order is liable to be quashed
and the matter has to be sent back to the
Court below for passing fresh order on
the charge sheet after applying judicial
mind."(Emphasis supplied)

10. In view of the above, the
conduct of the judicial officers concerned
in passing orders on printed proforma by
filling up the blanks without application
of judicial mind is objectionable and
deserves
to
be
deprecated.
The
summoning of an accused in a criminal
case is a serious matter and the order
must reflect that Magistrate had applied
his mind to the facts as well as law
applicable thereto.

11. In view of what has been stated
above, the present application is allowed.
The order impugned dated 22.02.2019
passed by Additional Chief Judicial
Magistrate, Jhansi is hereby quashed. The
Magistrate is directed to pass fresh order
after applying the judicial mind.
----------
(2020)03-05ILR A1631
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.02.2020

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

Application U/S 482 No. 4914 of 2020

Shahnawaz ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Mohd. Afzal

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

(A)
Criminal
law-
Negotiable
Instruments Act, 1881 - Section 138Code of Criminal Procedure, 1973 -
Section 482 - Inherent jurisdiction -
applicant
summoned
without
following the procedure laid down in
the case of J V Baharuni, Giriraj
Proteins
Pvt.
Ltd.
Baldevbhai
Ramjibhai Patel vs. State of Gujarat,
D
M
Finance,
Vishnubhai
Hargovinddas Patel - In a prosecution
under the Negotiable Instruments
Act,
the
compensatory
aspect
of
remedy must be given priority over
the
punitive
aspect
-
impugned
summoning order - set aside. (Para-5)

Complaint filed under section 138 of negotiable
instrument Act - allegation - applicant and
opposite party no.2 were having friendly
relations to each other, due to this the applicant
borrowed Rs.5,10,000/- - assurance that the
same will be returned after two months - time
period of two months elapsed and the applicant
did not return the aforesaid money taken by him
- cheque issued - returned due to "insufficient
funds" - legal notice to the accused - neither
1632 INDIAN LAW REPORTS ALLAHABAD SERIES
the reply was given nor any money was
returned - complaint filed . (Para-2)

HELD:- The matter is remanded to the Judge,
Additional Court to decide the summoning of
the applicant afresh in light of the judgment of
the Apex Court in the case of J V Baharuni,
Giriraj
Proteins
Pvt.
Ltd.
Baldevbhai
Ramjibhai Patel within a period of one
month. (Para-9)

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

List Of Cases Cited:-

J V Baharuni, Giriraj Proteins Pvt.
Ltd.
Baldevbhai Ramjibhai Patel vs. St. of Guj., D M
Finance, Vishnubhai Hargovinddas Patel , 2014
(10) SCC 494.

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

1. Supplementary affidavit filed today is
taken on record.

2. Heard Sri Mohd. Afzal learned counsel
for the applicant, Sri Amit Singh Chauhan,
learned A.G.A. for the State and perused the
entire record.

3. This application under Section 482
Cr.P.C. has been filed with a prayer to quash
the
proceedings
of
Complaint
Case
No.1047/2017,
under
Section
138
of
Negotiable Instrument Act (in short, 'N.I. Act'),
Police Station Kotwali City, District Bijnor as
well as impugned summoning order dated
19.04.2018 passed by Judge Additional Court,
Bijnor.

4. Brief facts of the case are that a
complaint has been filed with the allegation that
the applicant and opposite party no.2 were
having friendly relations to each other, due to
this the applicant borrowed Rs.5,10,000/- in the
month of April-May, 2016 from opposite party
no.2. The money was given with the assurance
that the same will be returned after two months.
The time period of two months elapsed and the
applicant did not return the aforesaid money
taken by him. A cheque no.384965 dated
04.05.2017 issued from U.P. Gramin Bank
from
Account
No.92810100195567
of
Rs.2,00,000/- was given by the applicant to the
complainant. However, the date on the cheque
was filled as 25.09.2017. The applicant asked
the complainant to present the cheque stating
that by that time he will be having the said
amount in his account. Believing the applicant,
the cheque was presented on 25.09.2017 at
Kotak Mahindra Bank, but the same was
returned on 11.10.2017 due to "insufficient
funds". When the complainant inquired about
the same, no specific reply was given, therefore,
notice was given on 07.11.2017 to the accused
and since neither the reply was given nor any
money was returned, after the legal notice being
given to the accused the complaint was filed.

5. It has been contended by learned
counsel for the applicant that the applicant has
been
summoned
without
following
the
procedure as laid down in the case of J V
Baharuni,
Giriraj
Proteins
Pvt.
Ltd.
Baldevbhai Ramjibhai Patel vs. State of
Gujarat,
D
M
Finance,
Vishnubhai
Hargovinddas Patel reported in 2014 (10)
SCC 494. It has further been submitted that the
order sheet of the trial court, which has been
appended as Annexure no.SA-1 to this
supplementary affidavit in support of this
petition, reflects that the procedure has not been
followed. He has referred to Paragraph No. 61
of the aforesaid judgment, which is reproduced
herein below:-

"61. However, to summarise and
answer the issues raised herein, following
directions are issued for the Courts seized off
with similar cases:
3-5 All. Shahnawaz Vs. State of U.P. & Anr.
1633

1. All the subordinate Courts must
make an endeavour to expedite the hearing of
cases in a time bound manner which in turn will
restore the confidence of the common man in
the justice delivery system. When law expects
something to be done within prescribed time
limit, some efforts are required to be made to
obey the mandate of law.

2. The learned Magistrate has the
discretion under Section 143 of the N.I. Act
either to follow a summary trial or summons
trial. In case the Magistrate wants to conduct a
summons trial, he should record the reasons
after hearing the parties and proceed with the
trial in the manner provided under the second
proviso to Section 143 of the N.I. Act. Such
reasons should necessarily be recorded by the
Trial Court so that further litigation arraigning
the mode of trial can be avoided.

3. The learned Judicial Magistrate
should make all possible attempts to encourage
compounding of offence at an early stage of
litigation.
In
a prosecution
under
the
Negotiable Instruments Act, the compensatory
aspect of remedy must be given priority over the
punitive aspect.

4. All the subordinate Courts
should follow the directives of the Supreme
Court issued in several cases scrupulously
for effective conduct of trials and speedy
disposal of cases.

5. Remitting the matter for de
novo trial should be exercised as a last
resort and should be used sparingly when
there is grave miscarriage of justice in the
light
of
illegality,
irregularity,
incompetence or any other defect which
cannot be cured at an appellate stage. The
appellate Court should be very cautious
and exercise the discretion judiciously
while remanding the matter for de novo
trial.

6. While examining the nature of
the trial conducted by the Trial Court for
the purpose of determining whether it was
summary trial or summons trial, the
primary and predominant test to be
adopted by the appellate Court should be
whether it was only the substance of the
evidence that was recorded or whether the
complete record of the deposition of the
witness in their chief examination, cross
examination
and
re-examination
in
verbatim was faithfully placed on record.
The appellate Court has to go through each
and every minute detail of the Trial Court
record and then examine the same
independently and thoroughly to reach at a
just and reasonable conclusion."

6. It has further been contended by
learned counsel for the applicant that the
concerned court below, while passing the
summoning order dated 19.04.2018, treated
the complaint filed by the complainantopposite party no.2 as a complaint case and
proceeded with the same as a complaint
case. However, no reason has been
recorded in the order dated 19.04.2018 as
to why a departure has been made from the
procedure provided under Section 138 of
N.I. Act. Although the petitioner had filed a
discharge application, which has been
rejected by the court below vide order
dated 19.04.2018 but the learned counsel
for the petitioner submits that the petitioner
should not suffer for fault on the part of
lawyers, who had not taken such a ground
before the court concerned. Learned
counsel
for
the
petitioner,
therefore,
submits that once the Apex Court in the
case of J V Baharuni, Giriraj Proteins
Pvt. Ltd. Baldevbhai Ramjibhai Patel
(Supra) has issued direction to all the
1634 INDIAN LAW REPORTS ALLAHABAD SERIES
courts in India to strictly comply with the
directions contained in the aforesaid case,
no exception can be carved out by the court
below to the same. It is, thus, contended
that since the summoning order passed by
the court below without following the
procedure as laid down in the case of J V
Baharuni, Giriraj Proteins Pvt. Ltd.
Baldevbhai Ramjibhai Patel (Supra), the
same cannot be sustained and is, therefore,
liable to be quashed.

7. In support of his contention,
learned counsel for the applicant has also
relied upon the judgment passed in
Application u/s 482 No.30953 of 2018
(Bali Ram @ Vinod Kumar Vs. State of
U.P. & others) and Matter under Article
227 No.9655 of 2019 (Atausalam @
Chhote Vs. State of U.P. & another).

8. Per contra, learned A.G.A. for the
State has opposed the contention raised by
the learned counsel for the applicant by
submitting that the disputed cheque was
issued by the applicant but the same have
been dishonoured. Therefore, the opposite
party no.2 was right in proceeding against
the applicant by filing a complaint under
Section 138 N.I. Act.

9. Consequently, the present criminal
misc. application succeeds and is allowed.
The impugned summoning order dated
19.04..2018 passed by Judge, Additional
Court, Bijnor is hereby, set aside. The
matter is remanded to the Judge, Additional
Court, Bijnor to decide the summoning of
the applicant afresh in light of the judgment
of the Apex Court in the case of J V
Baharuni, Giriraj Proteins Pvt. Ltd.
Baldevbhai Ramjibhai Patel (Supra)
within a period of one month from the date
of production of a certified copy of this
order.
----------
(2020)03-05ILR A1634
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.02.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 Cr.P.C. No. 5028 of 2020

Sunil Soni & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Pt. S.P. Sharma

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

(A) Criminal Law- Dowry Prohibition
Act - Section 3/4-Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - Indian Penal
Code, 1860 - Sections-498-A and 304B - read with opinion and finding of
Investigating Officer is not binding
upon the Magistrate - Magistrate has
to take a decision on the basis of the
evidence, collected and contained in
the Case Diary, prepared, during
investigation
-
No
additional
document of fact is to be taken at that
juncture
of
taking
cognizance
-
exercise of inherent jurisdiction under
Section 482 Cr.P.C. is within the
limits. (Para-8,15)

In present case, statement of informant and
other witnesses, were fully intact and accusation
of first information report was reiterated in
those statements - conclusion drawn by the
Magistrate was in accordance with the evidence
collected by the Investigating Officer, as
contained in the Case Diary- Therefore, while
passing impugned summoning order, learned
Magistrate has not committed any abuse of
process of law. (Para-8)