# Shiksha Educational Trust & Ors v. State of U.P. & Anr

- **Citation:** (2021) 7 ILRA 689
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-02
- **Case number:** Application U/S 482 Cr.P.C. No. 6747 of 2021
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiksha-educational-trust-ors-v-state-of-u-p-anr-47255
- **Pages:** 7

## Headnote

Act,
1881
-
Section 138 - Dishonour of cheque for
insufficiency,
etc.,
of
funds
in
the
account - Criminal Procedure Code, 1973
- Section 482 - Inherent powers -
Quashing of complaint - If relevant
aspects deserves to be investigated,
same cannot be circumvented u/S.482
of Cr.P.C. - when there are serious
allegations, they cannot be quashed
under Section 482 when prima facie
case is made out - (Para 12, 14)

Summoning order was issued on 28.04.2019 -
Applicant purposefully not appeared before the
Court below - summoning order cumulated into
bailable and non-bailable warrants - Summoning
order not challenged - Petition was after
thought of challenging non-bailable warrant -
belated challenge filed after a period of two
years - All facts which applicants have
mentioned before High Court could have been
mentioned before the Court below after
appearing before the Court below - grounds
urge and the annexures annexed cannot be
perused under Section 482 Cr.P.C. as Prima
facie ingredients of offence are made out from
papers on record - Applicant granted liberty to
before the Court below and the Court below
directed to consider their applications for
cancellation of non-bailable warrants - No case
u/S.482 Cr.P.C. made out - Complaint not liable
to be quashed - Application dismissed with
exemplary costs of Rs. 5,000/-. (Para 18, 19,
21)

Dismissed. (E-4)

List of Cases cited :

## Text

7 All. Shiksha Educational Trust & Ors. Vs. State of U.P. & Anr.
689
an accused who has been summoned to face
trial under Section 319 Cr.P.C. that the moment
he has been produced as an accused before
Court, the trial would revert back to the first
stage of trial and the entire evidence has to be
recorded again afresh in keeping with the
mandate of law that trial has to be a de novo
trial and on the basis of citations which have
been relied upon by the learned A.G.A. quoted
above, it is also very clear that there can be no
estoppel against law, therefore, if law lays down
that a particular procedure has to be followed
while conducting a de novo trial, it has to be
followed in letter and spirit as mandated under
law and no deviation can be allowed to happen
even at the concession/ concurrence given by
counsel or party of any side. In the case at hand,
it appears that learned counsel for the applicant/
accused when facing trial before the court
below, had given in writing that he was ready to
cross-examine P.W. 1 and whatever he had
stated
in
examination-in-chief
before
summoning of the accused applicant can be
taken to be an examination-in-chief recorded
against the accused applicant but that would be
against the principle of law laid down under
Section 319 (4) (a) of Cr.P.C. as it mandated de
novo trial which would include re-recording of
evidence of all witnesses. In the present case,
there is no dispute with respect to recording of
statements of other witnesses of prosecution i.e.
P.W. 2 to P.W. 9 in presence of accused
applicant in totality but dispute is there only
with regard to not recording the statement
(examination-in-chief) of P.W. 1 in presence of
the applicant and his counsel because of the
written consent having been given on their part
that they were ready to cross-examine the said
witness, therefore, same is being found against
the provision of law.

19. The impugned order suffers from
infirmity and present Application under Section
482 Cr.P.C. deserves to be allowed and is,
accordingly allowed. Application of the
applicant has been wrongly dismissed by the
court below, hence impugned order needs to be
set-aside and is, accordingly set-aside.

20. It is directed that the trial court shall
give opportunity to the accused applicant for
recording of Examination-in-Chief of the P.W.
1 in his presence and, thereafter he shall also be
provided full opportunity to cross-examine the
said witness in order to meet the mandate of
law.

21. Looking to the fact that this case is
very old and the stage of argument is already
reached but this infirmity has been pointed out
very late, therefore this Court expects that the
trial court shall fix specific date for recording
the statement (examination-in-chief) of P.W. 1
and would try to conclude the entire evidence of
the said witness on the same date or on
subsequent consecutive dates till the statement
of P.W. 1 is concluded without giving any
undue adjournment to either side and would try
to
conclude
this
case
at
the
earliest
expeditiously.
----------
(2021)07ILR A689
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.07.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

Application U/S 482 Cr.P.C. No. 6747 of 2021

Shiksha Educational Trust & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
690 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Deepak Kumar Jaiswal, Sri Sanjay
Kumar Gupta

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

Negotiable
Instrument
Act,
1881
-
Section 138 - Dishonour of cheque for
insufficiency,
etc.,
of
funds
in
the
account - Criminal Procedure Code, 1973
- Section 482 - Inherent powers -
Quashing of complaint - If relevant
aspects deserves to be investigated,
same cannot be circumvented u/S.482
of Cr.P.C. - when there are serious
allegations, they cannot be quashed
under Section 482 when prima facie
case is made out - (Para 12, 14)

Summoning order was issued on 28.04.2019 -
Applicant purposefully not appeared before the
Court below - summoning order cumulated into
bailable and non-bailable warrants - Summoning
order not challenged - Petition was after
thought of challenging non-bailable warrant -
belated challenge filed after a period of two
years - All facts which applicants have
mentioned before High Court could have been
mentioned before the Court below after
appearing before the Court below - grounds
urge and the annexures annexed cannot be
perused under Section 482 Cr.P.C. as Prima
facie ingredients of offence are made out from
papers on record - Applicant granted liberty to
before the Court below and the Court below
directed to consider their applications for
cancellation of non-bailable warrants - No case
u/S.482 Cr.P.C. made out - Complaint not liable
to be quashed - Application dismissed with
exemplary costs of Rs. 5,000/-. (Para 18, 19,
21)

Dismissed. (E-4)

List of Cases cited :

1. St. of Telangana Vs Habib Abdullah Jeelani &
ors. (2017) 2 SCC 799

2. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Maha AIR 2021 SC 1918
3. Bhajan Lal 1992 Supp (1) SCC 335

4. A. H. Patel Vs St. of Guj 2014 (1) GLR 766

5. St. of Ori Vs Ujjal Kumar Burdhan 2012 (1)
GLH 875 (SC)

6. Sathis Mehra Vs St. of N.C.T. Of Delhi & anr
AIR 2013 SC 506

7. Rajiv Thapar Vs Madan Lal Kapoor AIR 2013
(3) SCC 330

8. Ompal Singh & ors. Vs St. Of U.P. & ors. Cri.
M.W.P. No. 14852 of 2017

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

1. Heard learned counsel for the
applicant and learned A.G.A. for the State
and perused the record.

2. The present application under
Section 482 Cr.P.C. has been filed by the
applicant with the prayer to quash the
proceeding of Criminal Complaint No.1860
of 2019 (old No. 1057/2019) Bank of India
Vs. Shiksha Educational Trust and others
pending in the Court of Additional Chief
Judicial Magistrate II, Varanasi, under
Section 138 of Negotiable Instrument Act,
1881, P.S.- Kotwali, Varanasi, including
Summoning
Order
dated
29.04.2019
(Annexure-5) as well as N.B.W. dated
09.07.2020 (Annexure-6) and dismiss the
Criminal Complaint No. 1860; Bank of
India Vs. Shiksha Educational Trust and
others dated 11.03.2019 (Annexure-3).

3. It appears that the applicant nos. 2
and 3 have challenged the proceedings
more particularly after the non-bailable
warrant came to be issued on them. They
had not challenged the summoning order at
the first instance.
7 All. Shiksha Educational Trust & Ors. Vs. State of U.P. & Anr.
691

4. As far as averments made in the
application are concerned it has been submitted by
the learned A.G.A., are not such which would
permit this Court to quash the proceedings. The
provisions of Section 482 of Cr.P.C. for quashing
are not made out.

5. Facts as narrated in brief are that a
proposal for O.T.S. was submitted by Pratima
Singh, Chair Person with an application to
Chief Manager, Bank of India Lohatia Branch,
Varanasi; Bank of India accepted the O.T.S.
proposal on certain conditions which are
accepted by the applicants; A resolution was
passed giving number of 4 Cheques No. 7405,
7406, 7407 and 7408 dated 30.11.2018,
30.12.2018, 30.01.2019 and 01.02.2019; Letter
mentioning Cheque Nos. and dated were
submitted before the Chief Manager by the
Trust; Letter for renewal of O.T.S. by giving 4
new Cheques No. 7419, 7420, 7417 and 7418
dated 20.01.2019, 08.02.2019, 28.02.2019 and
25.03.2019 which was submitted before Zonal
Manager; Letter for payment of dues under
O.T.S. by giving 4 new Cheques nos. 7419,
7420,
7417,
7418
dated
20.01.2019,
08.02.2019, 28.02.2019 and 25.03.2019 which
was submitted before Chief Manager; Cheque
No.7406 for Rs. 100 Lacs was issued in the
name of Bank of India; Return Memo was
issued by Union Bank of India with remark
''funds insufficent' ; Legal Notice in respect of
dishonor of Cheque No.7406 dated 30.12.2018
for Rs.100 Lac was allegedly given; Letter of
Chief Manager cancelling O.T.S. proposal
dated 14.07.2018 sanctioned on 19.11.2018;
Complaint U/S 138 N.I. Act, was filed by Bank
of India through Chief Manager which was
registered as Criminal Complaint No.1860 of
2019 (old No. 1057 of 2019); statement of
complainant, Chief Manager U/s 200 Cr.P.C. in
the form of affidavit was recorded; the
summoning order was never challenged before
this Court.

6. The averments and complaint by
the complainant will also not permit this
Court to exercise jurisdiction under Section
482 Cr.P.C. I am fortified in my view by the
decision rendered in State of Telangana Vs.
Habib Abdullah Jeelani and others, (2017)
2 SCC 799. There are serious allegations
against the accused. Therefore it cannot be
said that this is a case which requires to be
entertained. The Court as per the contours of
Section 482 Cr.P.C. cannot grant indirectly
which cannot be granted directly. I am even
fortified in my view by the decision rendered
in Neeharika Infrastructure Pvt. Ltd. Vs.
State of Maharashtra AIR 2021 SC 1918.

7. At the stage the High Court is not
justified in embarking upon an enquiry as
to the probability, reliability or genuineness
of the allegations made therein. Of course it
has been pointed out in Bhajan Lal cases,
1992 Supp (1) SCC 335, an F.I.R. or a
complaint
may
be
quashed
if
the
allegations made therein are so absurd and
inheretently improbable that no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding
against the accused but the High Court has
not recorded such a finding, obviously
because on the allegation in the F.I.R. it
was not possible to do so. Therefore, it
must be held that the High Court has
committed a gross error of law in quashing
the F.I.R. and the complaint. Accordingly,
the impugned judgment is set aside and the
petition filed by the respondent in the High
Court under Section 482 Cr.P.C. is
dismissed.

8. After coming to know that the nonbailable warrant has been issued this is a
clear device of challenging the entire
proceedings under Section 482 Cr.P.C. It is
692 INDIAN LAW REPORTS ALLAHABAD SERIES
not known if the police has already arrested
the accused as the warrants were issued
long back before one year. The summoning
order is dated 29.04.2019 which means that
for a period of two years the respondents
have not appeared before the learned
Magistrate.

9. It is submitted by learned A.G.A.
that the present application is devoid of
merits just because there are litigation
pending before DRT and DRAT Allahabad
and complaint cannot be quashed. It cannot
be said that the proceedings are bad. No
case is made out for interference under
Section 482 Cr.P.C. at this juncture.

10. Hence, the application is required
to dismissed. However if the applicants
choose, they may appear before the Court
below and if the non-bailable yet not served
on them, they may request the Court for
recalling of non-bailable warrants.

11. It is a after thought only after the
non-bailable warrants were issued that the
applicants have approached this Court, they
did not appear before the Court below nor
challenge the summoning order were
issued. The summoning order were never
challenged. The submission of Sri Deepak
Kumar Jaiswal that dual proceedings
cannot take place both under DRAT and
under Section 138 of N.I. Act is not tenable
as there is no bar if the cheque is bounced
on the basis of insufficiency of funds, may
be because of one time settlement or
rejection of the same cannot be countered
under Section 482 Cr.P.C..

12. I have heard the parties and have
perused the entire record. Prima facie
ingredients of the offence are made out
from the papers on record. On the
touchstone of the decision of the Apex
Court and in a recent decision of High
Court of Gujarat in case of A. H. Patel vs.
State of Gujarat reported in 2014 (1)
GLR 766 as the facts are similar to this
case the said decision and the parameters
fixed in the recent decision has holding that
if the relevant aspects deserves to be
investigated,
the
same
cannot
be
circumvented under Section 482 of the
Code.

13. The Apex Court in case of State
of Orissa vs. Ujjal Kumar Burdhan
reported in 2012 (1) GLH 875 (SC) has
observed that:

"7. It is true that the inherent
powers vested in the High Court under
Section 482 of the Code are very wide.
Nevertheless, inherent powers do not
confer arbitrary jurisdiction on the High
Court to act according to whims or
caprice. This extraordinary power has to
be exercised sparingly with circumspection
and as far as possible, for extraordinary
cases, where allegations in the complaint
or the first information report, taken on its
face value and accepted in their entirety do
not constitute the offence alleged. It needs
little emphasis that unless a case of gross
abuse of power is made out against those
incharge of investigation, the High Court
should be loath to interfere at the
early/premature stage of investigation.

8. In State of West Bengal and
Ors. Vs. Swapan Kumar Guha and
Ors.(1982) 1 SCC 561: 1982 SCC (Cri)
283, emphasising that the Court will not
normally interfere with an investigation
and will permit the inquiry into the alleged
offence, to be completed, this Court
highlighted the necessity of a proper
investigation
observing
thus:
An
investigation is carried on for the purpose
of gathering necessary materials for
7 All. Shiksha Educational Trust & Ors. Vs. State of U.P. & Anr.
693
establishing and proving an offence which
is disclosed . When an offence is disclosed,
a proper investigation in the interests of
justice becomes necessary
to collect
materials for establishing the offence, and
for bringing the offender to book. In the
absence of a proper investigation in a case
where an offence is disclosed , the offender
may
succeed
in
escaping
from
the
consequences and the offender may go
unpunished to the detriment of the cause of
justice and the society at large. Justice
requires that a person who commits an
offence has to be brought to book and must
be punished for the same. If the court
interferes with the proper investigation in a
case where an offence has been disclosed,
the offence will go unpunished to the
serious detriment of the welfare of the
society and the cause of the justice suffers.
It is on the basis of this principle that the
court normally does not interfere with the
investigation of a case where an offence
has been disclosed.... Whether an offence
has been disclosed or not must necessarily
depend on the facts and circumstances of
each
particular
case....
If
on
a
consideration of the relevant materials, the
court is satisfied that an offence is
disclosed, the court will normally not
interfere with the investigation into the
offence and will generally allow the
investigation into the offence to be
completed for collecting materials for
proving the offence."(emphasis supplied)."

14. It is held that High Court should
be loath in exercise of jurisdiction under
Section 482 of Code to enter into the
process of determining the veracity of
complaint. In case of Sathis Mehra vs.
State of N.C.T. Of Delhi and anr reported
in AIR 2013 SC 506 it is held by the Apex
Court
that
when
there
are
serious
allegations, they cannot be quashed
under Section 482 when prima facie case is
made out.

15. The Apex Court in case of Rajiv
Thapar vs. Madan Lal Kapoor reported
in AIR 2013 (3) SCC 330 has held that :

"29. The issue being examined in
the instant case is the jurisdiction of the
High Court under Section 482 CrPC, if it
chooses to quash the initiation of the
prosecution against an accused at the stage
of issuing process, or at the stage of
committal, or even at the stage of framing
of charges. These are all stages before the
commencement of the actual trial. The
same parameters would naturally be
available for later stages as well. The
power vested in the High Court under
Section 482 CrPC, at the stages referred to
hereinabove,
would
have
farreaching
consequences inasmuch as it would negate
the prosecution's case without allowing the
prosecution/complainant to lead evidence.
Such a determination must always be
rendered
with
caution,
care
and
circumspection. To invoke its inherent
jurisdiction under Section 482 CrPC the
High Court has to be fully satisfied that the
material produced by the accused is such
that would lead to the conclusion that
his/their defence is based on sound,
reasonable, and indubitable facts; the
material produced is such as would rule
out and displace the assertions contained
in the charges levelled against the accused;
and the material produced is such as would
clearly reject and overrule the veracity of
the allegations contained in the accusations
levelled by the prosecution/complainant. It
should be sufficient to rule out, reject and
discard the accusations levelled by the
694 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution
/complainant,
without
the
necessity of recording any evidence. For
this the material relied upon by the defence
should
not
have
been
refuted,
or
alternatively, cannot be justifiable refuted,
being material of sterling impeccable
quality. The material relied upon by the
accused should be such as would persuade
a reasonable person to dismiss and
condemn
the
actual
basis
of
the
accusations as false. In such a situation,
the judicial conscience of the High Court
would persuade it to exercise its power
under Section 482 CrPC to quash such
criminal proceedings, for that would
prevent abuse of process of the court, and
secure the ends of justice.

As observed by Hon'ble Apex Court,
the powers vested in the High Court under
Section 482 of the Code, when exercised,
have far reaching consequences, most
important being the consequence that it
would
negate
the
prosecution's/
complainant's case without allowing the
prosecution/ complainant to lead evidence
and that, therefore, the exercise of the said
powers should be with utmost caution, care
and circumspection. This is a case which
cannot
be
said
to
be
one
where
extraordinary power require to be exercised
as basic ingredients of the alleged offences
are there.

16. In view of the above, I do not feel
that this petition requires to be entertained.
The petition is devoid of merits and is
dismissed.
Interim
relief
is
vacated
forthwith. The police shall take action
immediately
regarding
non-bailable
warrants. Writ be sent to the concerned
police station to take further action.

17. Moreover recently the Division
Bench
while
exercising
a
broader
jurisdiction under Article 226 of the
Constitution of India in Criminal Misc.
Writ Petition No. 14852 of 2017 (Ompal
Singh And 3 Ors Vs. State Of U.P. And 2
Ors.)
has
rejected
the
petition
for
quashment.

18. This petition is after thought of
challenging the non-bailable warrant, the
application is devoid of merits and is
dismissed with exemplary costs of Rs.
50,000/- to be deposited with the Legal
Service Authority which can be utilized for
the patients of Covid-19 as officers of such
institutions after falling to appear before
the Court below have come up with this
challenge which is a belated challenge filed
after a period of two years. They have
purposefully not appeared before the Court
below. The summoning order was issued
on 28.04.2019. All these facts which the
applicants have mentioned herein, they
could have mentioned before the Court
below after appearing before the Court
below.

19. From these factual data, it is
submitted that two proceedings cannot
simultaneously be proceeded. All these are
in the realms evidence. The liabilities were
prima facie there and therefore it cannot be
said that the issuance of summons is bad.
The amount of cheque and and contours of
Section 138 of N.I. Act, cannot be said to
have been prima faice not made out. The
summoning order cumulated into bailable
and non-bailable warrants. The grounds
urge and the annexures annexed cannot be
perused under Section 482 Cr.P.C. when
prima facie case is made out.

20. It cannot be said that the
complaint bared by SARFAESI Act, 2002.
If it was against the O.T.S., the O.T.S. is
not bounty but there a meritorious for
7 All. Nivesh Gupta & Ors. Vs. State of U.P. & Anr.
695
liability and therefore both the proceedings
can simultaneously be carried out because
of the Pandemic the matter remain pending
here. If the accused are still not arrested the
only indulgence which can be shown. They
may appear before the Court below and the
Court
below
may
consider
their
applications for cancellation of nonbailable warrants.

21. No case for under Section 482
Cr.P.C. is made out. The application is
dismissed with exemplary costs of Rs.
50,000/-.

F. Order

On oral request before this order is
signed, the cost is reduced to Rs.5,000/-
(five thousand).
----------
(2021)07ILR A695
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.07.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 Cr.P.C. No. 6947 of 2021

Nivesh Gupta & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Shri Krishna Mishra, Sri Shri Krishna
Mishra

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

The Protection of Women from Domestic
Violence Act, 2005 - Criminal Procedure
Code, Section 482 - Quashing of
proceedings
-
Court
below
merely
registered the complaint filed by opp.
party no. 2 under DV Act - Applicant
sought quashing on ground that parties
not living in 'shared household' therefore
proceedings
under
DV
Act
not
maintainable - Held - whether parties are
living or not not living together in a
shared
household,
would
require
adjudication by the competent court,
based upon a consideration of the case in
its entirety - question of maintainability
would require proper appreciation of facts
of case and thorough deliberation of
issues raised - Claim for protection under
DV Act may not be thrown out at
threshold
- applicants can raise his
defence in the proceedings before the
court below - Proceedings, not liable to be
quashed. (Para 12, 15)

Dismissed. (E-4)

List of Cases cited :

1. Krishna Bhattacharjee Vs Sarathi Choudhur
(2016) 2 SCC 705

2. Vaishali Abhimanyu Joshi Vs Nanasaheb
Gopal Joshi (2017) 14 SCC 373

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Shri Krishna Mishra,
learned counsel for the applicants through
video link and Ms. Sushma Soni, learned
Additional Government Advocate for the
State-opposite party.

2. The present application seeks to
challenge the order dated 7.11.2020, by
means of which, the complaint registered as
Complaint Case No. 1777 of 2020
(Shambhavi Kesharwani vs. Nivesh Gupta)
filed by the opposite party no. 2, has been
directed to be registered fixing a date and