# Shiv Narain Gupta Revisionist v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2022) 12 ILRA 622
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-14
- **Case number:** Crl. Revision No. 5121 of 2010
- **Bench:** Mayank Kumar Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-narain-gupta-revisionist-v-state-of-u-p-anr-opp-parties-47957
- **Pages:** 6

## Headnote

Law
-Code
of
Criminal
Procedure,
1973-Section
397/401
-
Negotiable
Instruments
Act,
1881Section 138-challenge to- convictiondishonour of cheque-notice was given
under the stipulated time but the
complaint was not filed within one month
from the date on which cause of action
arose-condonation of delay application
was moved-objection filed with regard to
condonation of delay to file a complaint
beyond
time
by
the
complainantProvision of section 142(b) of NI Act
cannot be considered to be effective with
retrospective effect-Ld trial court did not
consider it and rejected the objection and
did not give the benefit of the provision
to
the
respondent-Therefore,
the
complaint filed by the revisionist barred
by limitation.(Para 1 to 21)
12 All. Shiv Narain Gupta Vs. State of U.P. & Anr.
623
The revision is dismissed. (E-6)

List of Cases cited:
Subodh S.Salaskar Vs Jay Prakash M. Shah &
anr. (2008) 13 SCC 689

## Text

622 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation based on which the revisionist
was not charge sheeted.

20. In view of the above, it is clear that
the learned trial court while passing the
impugned order only considered the evidence
of PW-1 and PW-2 recorded during the trial
about the involvement of the revisionist and
summoned him invoking the power for
summoning revisionist under Section 319
Cr.P.C. to face the trial. The trial court has
completely ignored the evidence which was
available on record more than prima facie as
referred earlier. In view of the observation
made by the Hon'ble Apex Court in Brijendra
Singh Vs. State of Rajasthan (supra) in the
present case also the evidence recorded
during the trial was nothing more than the
statements of informant Ikhlakh Ahmad and
his
son
Fakre
Alam,
recorded
by
Investigating Officer under Section 161
Cr.P.C. Sufficient evidence was collected by
the Investigating Officer which does not
suggest the involvement of the revisionist in
the crime. The evidence of PW1 Ekhlaq
Ahmad, which came up during his crossexamination with regard to the revisionist
was not considered by the trial court while
passing the impugned order.

21. Therefore, in view of the above,
the impugned order passed by the learned
trial Court is not sustainable and liable to
be set aside. Resultantly, the revision is
liable to be allowed.

Order

22. The Criminal Revision is hereby
allowed.

23. The impugned order dated
23.08.2022 passed in Sessions Trial No.
281 of 2021 (State Vs. Ashfaq Ahmad and
Ors) relating to Case Crime No. 135 of
2021, under Sections 498-A, 304-B IPC
and section 3⁄4 of Dowry Prohibition Act,
Police Station Bhadohi, District Bhadohi, is
hereby set aside.

24. Let the copy of this order be sent
to the court concerned for information and
necessary compliance.
----------
(2022) 12 ILRA 622
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.12.2022

BEFORE

THE HON'BLE MAYANK KUMAR JAIN, J.

Crl. Revision No. 5121 of 2010

Shiv Narain Gupta ...Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Sri Surendra Singh, Sri Harsh Narayan Singh, Sri
Prashant Kumar Singh

Counsel for the Opp. Parties:
Govt. Advocate, Sri Sanjay Kumar Singh

A.
Criminal
Law
-Code
of
Criminal
Procedure,
1973-Section
397/401
-
Negotiable
Instruments
Act,
1881Section 138-challenge to- convictiondishonour of cheque-notice was given
under the stipulated time but the
complaint was not filed within one month
from the date on which cause of action
arose-condonation of delay application
was moved-objection filed with regard to
condonation of delay to file a complaint
beyond
time
by
the
complainantProvision of section 142(b) of NI Act
cannot be considered to be effective with
retrospective effect-Ld trial court did not
consider it and rejected the objection and
did not give the benefit of the provision
to
the
respondent-Therefore,
the
complaint filed by the revisionist barred
by limitation.(Para 1 to 21)
12 All. Shiv Narain Gupta Vs. State of U.P. & Anr.
623
The revision is dismissed. (E-6)

List of Cases cited:
Subodh S.Salaskar Vs Jay Prakash M. Shah &
anr. (2008) 13 SCC 689

(Delivered by Hon'ble Mayank Kumar
Jain, J.)

1. Present Criminal Revision is
preferred against the judgment and order
dated
31.08.2010
passed
by
learned
Additional Sessions Judge Court No. 3,
Banda in Criminal Appeal No. 14 of 2008
(Laxmi Narain Vs. Shiv Narain Gupta and
another), under section 138 of Negotiable
Instruments
Act,1881
Police
Station
Kotwali, District-Banda, whereby learned
Revisional Court set aside the judgment
and order of sentence passed by the learned
Civil Judge (S.D.)/ A.C.J.M., Banda in
Complaint Case No.31/1/2008 (Shiv Narain
Gupta Vs Laxmi Narain) convicting and
sentencing
the
respondent
no.2
with
rigorous imprisonment for two years and
with fine of Rs. 2000/-.

2. Brief facts of the case are that
revisionist instituted a complaint case
against the respondent no.2 under Section
138 Negotiable Instruments Act, alleging
therein that on 17.03.1996 respondents
borrowed
Rs.
40,000/-
from
the
revisionist and against that amount, he
gave a cheque dated 20.03.1996 of this
amount to the revisionist. The aforesaid
cheque was presented for payment in the
bank, but it was dishonoured on account
of insufficient of the amount in the
account
of
the
respondent
No.2.
Thereafter, a notice dated 16.08.1996 was
given by the revisionist asking him to
repay the amount within fifteen days, but
respondent No.2 did not make the
payment.

3. Learned Trial Court vide order
dated 23.02.2008 observed that respondent
no. 2 has committed offence under section
Section 138 Negotiable Instruments Act,
and after considering the material available
on
record
awarded
punishment
as
aforesaid.

4. Feeling aggrieved with the
aforesaid judgment and the order of the
conviction, the respondent Laxmi Narayan
preferred Criminal Appeal No.14 of 2008
before the Additional Session Judge,
Banda, which was decided by means of
impugned order dated 31.08.2010 and
appeal of the respondent no.2 was allowed
and judgment and order of sentence was set
aside.

5. Against the impugned order dated
31.08.2010, present criminal revision has
been filed.

6. Heard Sri Harsh Narayan Singh,
learned counsel for the revisionist and Sri
Alok Kumar Gupta, Advocate holding brief
of Sri Sanjay Kumar Singh, learned counsel
for the informant and perused the record.

7. Learned counsel for the revisionist
vehementally urged that learned Revisional
Court has committed jurisdictional error in
passing the impugned order. Revisionist
has proved its case with oral and
documentary evidence, on which basis
learned
trial
court
convicted
the
respondent.
Learned
trial
court
has
appreciated the material available on record
rightfully. The cheque was not given by the
respondents to the revisionist as collateral
security against the amount borrowed by
him while it was given to discharge of debt.
Revisionist presented the cheque before
Tulsi Gramin Bank on 12.08.1996 i.e. well
within time, but it was dishonoured due to
624 INDIAN LAW REPORTS ALLAHABAD SERIES
insufficiency of the fund in the account of
the
respondent.
Upon
receiving
the
information, revisionist served notice dated
16.08.1996 to the respondents. Respondent
inspite of proper service of notice upon
him, failed to comply the requirement as
contained in the notice and did not pay the
amount
to
the
revisionist
therefore,
complaint under Section 138 Negotiable
Instruments Act,1881 was filed by the
revisionist.

8. Learned counsel for the revisionist
further submitted that learned trial court
has rightly allowed the delay condonation
application
of
the
revisionist,
since
sufficient
reason
was given
by
the
revisionist in his application. It is also
submitted that respondents moved an
application to recall the order of delay
condonation but it was rightly rejected by
the trial court. Learned Revisional court
although has observed that complaint filed
by the revisionist was time barred, but it
rightly held that no benefit of this fact
could be given to respondents since he did
not prefer any legal remedy against the
order of trial court passed on his
application to recall order for delay
condonation.

9. It is further submitted that
revisional court erroneously arrived at a
conclusion that cheque was given by the
respondent in the form of collateral security
while the cheque was given by the
respondents to discharge of debt amount
taken by him.

10. Learned counsel for the revisionist
referred that in the provision contemplated
under section 142 (b) of the Negotiable
Instruments Act, 1881 revisionist has been
granted the relief of delay condonation by
learned
trial
court
and
objection
of
respondent were rejected thereafter.

11. Per contra, learned counsel for the
respondent and learned A.G.A. has submitted
that when the order of delay condonation was
passed by the learned trial court, the aforesaid
provision was not inserted in the Act. It is
further submitted that learned revisional court
opined that complaint of the revisionist was
time barred but erroneously it held that since
respondent has not availed any legal remedy
against the order of delay condonation,
therefore, no benefit could be given to the
respondents and assumed that the complaint
of the revisionist was maintainable. Further it
is submitted that cheque was given for
collateral security of the amount borrowed by
the respondents.

12. Section 138 of Negotiable
Instruments Act, 1881 reads thus:-

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 provision of this Act,
be punished with imprisonment for [a term
which may be extended to two years], or
with fine which may extend to twice the
amount of the cheque, or with both.

Provided that nothing contained in
this section shall apply unless--
12 All. Shiv Narain Gupta Vs. State of U.P. & Anr.
625

(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,3[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 of other liability means a
egally enforceable debt or other liability.

13. That in the case in hand on the
basis of the fact, it transpires that cheque
was given by the revisionist to the
respondent no.2 on 20.03.1996. The
aforesaid
cheque
was
presented
for
clearance in Tulsi Gramin Bank on
12.08.1996 i.e. within six months as
provided under Section 138 of Negotiable
Instruments Act, 1881. After receiving the
information from the Bank that cheque is
not honoured due to in sufficient of the
fund in the account of respondent no.2, the
revisionist served a notice dated 16.08.1996
to the respondent no.2. The notice was
given under the stipulated time as provided.
But the complaint was filed under Section
138 of Negotiable Instruments Act, 1881
on 08.10.1996 by the revisionist, which
ought to have been filed within one month
from the date on which cause of action
arose under Clause (c) of proviso of section
138 of Negotiable Instruments Act, 1881.

14. Perusal of record goes to show
that during pendency of the complaint
before the learned trial court, an application
under Section 11-A for condonation of
delay was moved on behalf of the
revisionist
on
06.01.1997.
Thereafter,
objection-paper No.14-A was filed by the
respondents-opposite party on 27.03.1998
to recall the application dated 06.01.1997
with regard to condonation of delay to file
a
complaint
beyond
time
by
the
complainant.

15. Learned trial court vide order
dated 01.04.1997 rejected the objection of
the respondent-opposite party and passed
summoning order.

16.

Learned
counsel
for
the
respondent
vehmentally
argued
that
provision of Section 142 (b) of Negotiable
Instruments Act, 1881 was inserted by Act
No. 55 of 2002 and it was made applicable
w.e.f.
06.02.2003.
Only
after
implementation of this provision, the court
has power to take cognizance upon
complaint which has filed after prescribed
period, if the complainant satisfies the court
that he had sufficient cause for not making
a complaint within such period. Learned
counsel for the revisionist further argued
that provision of Section142 (b) of the
Negotiable Instruments Act, 1881 are not
applicable
with
retrospective
effect,
therefore, the delay condoned by the
learned trial court was erroneous and even
when the revisional court opined that
complaint was not filed within stipulated
period, it would have been given benefit to
the respondents-opposite party.

17. The proviso of Section 142(b) of
Negotiable Instruments Act, 1881 was
inserted by Act No. 55 of 2002, section 9
(w.e.f. 06.02.2003) as under:-
626 INDIAN LAW REPORTS ALLAHABAD SERIES

"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"

The provision made with insertion of
the proviso empowers the Court to take
cognizance of a complaint after the
prescribed period, if the complainant
satisfies that he had sufficient cause for not
making a complaint within such period.

18. In Subodh S. Salaskar Versus
Jay Prakash M. Shah and another (2008)
13 SCC 689, Hon'ble Apex Court held
that:-

26. "..................The provisions
of the Act being special in nature, in terms
thereof the jurisdiction of the court to take
cognizance of an offence under Section
138 of the Act was limited to the period of
thirty days in terms of the proviso
appended thereto Parliament only with a
view
to
obviate
the
aforementioned
difficulties on the part of the complainant
inserted proviso to Clause (b) of Section
142 of the Act in 2002. It confers a
jurisdiction upon the court to condone the
delay. It is, therefore, a substantive
provision and not a procedural one. The
matter might have been different if the
Magistrate could have exercised its
jurisdiction either under Section 5 of the
Limitation Act,196 or Section 473 of the
Code of Criminal Procedure,1976. The
provisions of the said Acts are not
applicable.
In
any
event,
no
such
application for condonation of delay was
filed. If the proviso appended to Clause
(b) of Section 142 of the Act contained a
substantive
provision
and
not
a
procedural one, it could not have been
given a retrospective effect. A substantive
law, as it is well settled, in absence of an
express provision,cannot be given a
retrospective
effect
or
retroactive
operation".

19. On the basis of observations
made above by Hon'ble Apex Court, in the
aforesaid matter, it is clear that provision
of
Section
142
(b)
of
Negotiable
Instruments
Act,
1881
cannot
be
considered
to
be
effective
with
retrospective effect. Therefore, learned
trial court has wrongly passed the order
for condontion of delay in filing the
complaint
by
the
complainant
and,
moreover, when the objection was raised
before the revisional court, it did not
consider it and has rejected the objection.
Learned
revisional
also
ignored
the
provision as contained under section
142(b) of the Negotiable Instruments Act,
1881 and did not give the benefit of the
provision to the respondent. Therefore, it
is observed that the complaint filed by the
revisionist barred by limitation.

20. That so far as the nature of
transaction is concerned, learned revisional
court on the basis of evidence produced by
the revisionist observed that cheque was
given by the respondent to the revisionist
for collateral security not as discharge to
any of debt or other liability. Revisional
Court after appreciating the material
available on record rightly observed that
the cheque was given as collateral security
to the amount given by the revisionist to
the respondents. There is no illegality in
observation and conclusion drawn by the
learned trial Court.

21. In view of the above, criminal
revision lacks merit and, is hereby
dismissed.
12 All. Pramod Chandra Gupta Vs. The State of U.P. & Anr.
627
----------
(2022) 12 ILRA 627
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Crl. Misc. Writ Petition No. 1294 of of 2020
with
Crl. Misc. Writ Petition Nos. 622 of 2022, 7160
of 2022, 5148 of 2021, 8758 of 2022 & Transfer
Application (Criminal) No. 239 of 2020

Pramod Chandra Gupta ...Petitioner
Versus
The State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Shiv Sagar Singh, Sri Manish Gupta

Counsel for the Respondents:
G.A., Sri Gyan Prakash (Senior Adv.), Sri Sanjay
Kumar Yadav

A. Criminal Law - Constitution of India,
1950- Article 226 - Indian Penal Code,
1860-Sections 420, 467,468, 471, 120-B -
Prevention
of
Corruption
Act,1988
-
Section 13(1)(c), 13(1)(d) r/w Section
13(1)(2)
of
PC
Act-Challenge
toSupplementary charge sheet filed by CBI
against
the
discharged
accused-CBI
committed no illegality in charge sheeting
the discharged accused as discharge of an
accused u/s 227 does not tantamount to
acquittal-The
court
can
consider
the
offence again as it would not tantamount
to review of the discharge order-This does
not prejudice the accused, rather, it is the
mandate of law i.e. no accused can escape
trial-Once a report u/s 173(2)/173(8) of
the code submitted, it can only be closed,
proceeded further or case closed by the
court of competent jurisdiction-The U.P.
Police had filed the charge sheet at
Meerut being designated Anti Corruption
Court having jurisdiction over district
Mathura-But on the case being transferred
to CBI, the CBI filed the supplementary
report
before
the
designated
Anti
Corruption CBI Court at Ghaziabad-In
exercise of powers u/s 186 of Code, High
Court can transfer the trial from Special
Judge Meerut to CBI Court at Ghaziabad ,
having jurisdiction-CBI in the present case
has
charge-sheeted
public
servants,
private
persons
and
companies
for
offences under PC Act, IPC, including,
conspiracy-The
conspiracy
to
commit
offence punishable under the PC Act itself
is an offence to be tried only by a Special
Judge-It is not necessary that in every
offence under the PC Act, a public servant
must
be
an
accused-
The
transfer
application is allowed. (Para 1 to 102)

B. In the present case, the investigation of
the case was transferred to CBI at the
stage of pendency of investigation against
some other persons-The U.P. Police had
not
concluded
and
closed
the
investigation-In the meantime, the earlier
charge sheeted accused by the U.P. Police
came to be discharged by the trial court
for some of the offences under the IPC
and the PC Act-The charges, thereafter,
was framed by the trial court on other
counts-The CBI upon concluding the
investigation
submitted
supplementary
charge sheet against 31 persons, including
the petitioners, for the some offences
already discharged by the trial court.
(Para 67 to 70)

The writ petition is dismissed. (E-6)

List of Cases cited:
1. T.T. Antony Vs St. of Ker. & ors.(2006) 1 SCC
181

2. Pradeep Ram Vs St. of Jharkhand & anr.
(2019) AIR SC 3193

3. Vinubhai Haribhai Malaviya & ors. Vs St of
Guj. &anr. (2019) 17 SCC

4. Common Cause Vs U.O.I. (1996) 6 SCC 775

5. Vinay Tyagi Vs Irshad Ali @ Deepak &ors.
(2013) 5 SCC 762