# State of U.P. & Anr v. Ashwani Kumar & Anr

- **Citation:** (2024) 3 ILRA 1494
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-01
- **Case number:** Matter Under Article 227 No. 7895 of 2023
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-anr-v-ashwani-kumar-anr-51615
- **Pages:** 6

## Headnote

Law
-
Negotiable Instruments Act, 1881
-
Section 138 - Against summoning order -
Cheque
issued
by
petitioner
was
presented by respondent no. 2 (payee) on
18.09.2019 - Upon its dishonour, return
memo dated 17.12.2019 received - Within
thirty
days
thereof,
on
04.01.2020,
respondent no. 2 issued notice, which was
received by petitioner on 08.01.2020 -
Held, petitioner had fifteen days from
08.01.2020, date of receipt of notice, to
make
payment
-
Period
expired
on
23.01.2020 and cause of action for filing
complaint
accordingly
arose
on
23.01.2020 under clause (c) of proviso to
Section
138
-
Complaint
filed
on
20.02.2020 was within prescribed one
month period under clause (b) of subsection (1) of Section 138, reckoned from
23.01.2020, date on which cause of action
arose
-
Concerned
Court,
therefore,
3 All. State of U.P. & Anr. Vs. Ashwani Kumar & Anr.
1495
competent to take cognizance u/s 142 -
Thus, summoning order and revisional
order cannot be faulted on ground of
limitation - Petition dismissed. (Para 4, 5,
22 to 24)

Writ petition dismissed. (E-13)

List of Cases cited:

## Text

1494 INDIAN LAW REPORTS ALLAHABAD SERIES
cases that would be covered by Part I of the
Second Schedule of the Act, 2008, it is
required to be seen whether the special
procedure prescribed in the Act, 2008
would
be
appropriate
for
effective
adjudication, or, whether the detailed
procedure prescribed in the CPC would be
appropriate, does not appear to be correct
given the scheme and the objects of the
Act, 2008. Presently, under the Rules of
2009, only those matters of valuation up to
Rs.25,000/= can be entertained by the
Gram Nyayalaya. Since maintainability of
appeals before the District Court against
the judgments and orders of the Gram
Nyayalaya in civil cases has been restricted
on the basis of valuation as provided under
sub-section (2) of Section 34 of the Act,
2008, such restricted matters would,
generally, deserve to be given a quietus.
However, where there is a failure of justice,
no one is precluded from availing judicial
remedies as indicated in sub-section (6) of
Section 34. With regard to matters whose
valuation would entail maintainability of
appeals on facts, the relevant provisions in
CPC would come to the aid of such
appellants as the procedure for appellate
courts is not prescribed in the Act, 2008. It
is therefore, always open for the Parliament
or the State Legislature, as the case may be,
to amend the Second Schedule to the Act,
2008 to include such other nature of cases
as they deem fit.

41. Under the facts and circumstances
of the case, the impugned judgment and
order dated 24.12.2021 passed by the
Nyayadhikari, Gram Nyayalaya, Manikpur,
District Chitrakoot, passed in New Original
Suit No. 41 / 2020 (Smt. Siya Dulari v.
Awadh Naresh) is set aside. The record of
the suit with the Gram Nyayalaya is
directed to be sent to the District Court
within 15 days from today, if not already
sent, for its adjudication afresh by the
appropriate court.

42. This petition is, accordingly,
allowed.
----------
(2024) 3 ILRA 1494
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.03.2024

BEFORE

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

Matter Under Article 227 No. 7895 of 2023

State of U.P. & Anr. ...Petitioners
Versus
Ashwani Kumar & Anr. ...Respondents

Counsel for the Petitioners:
Sri Surendra Prasad Mishra

Counsel for the Respondents:
Sri Pankaj Saxena(A.G.A.-I)

Civil
Law
-
Negotiable Instruments Act, 1881
-
Section 138 - Against summoning order -
Cheque
issued
by
petitioner
was
presented by respondent no. 2 (payee) on
18.09.2019 - Upon its dishonour, return
memo dated 17.12.2019 received - Within
thirty
days
thereof,
on
04.01.2020,
respondent no. 2 issued notice, which was
received by petitioner on 08.01.2020 -
Held, petitioner had fifteen days from
08.01.2020, date of receipt of notice, to
make
payment
-
Period
expired
on
23.01.2020 and cause of action for filing
complaint
accordingly
arose
on
23.01.2020 under clause (c) of proviso to
Section
138
-
Complaint
filed
on
20.02.2020 was within prescribed one
month period under clause (b) of subsection (1) of Section 138, reckoned from
23.01.2020, date on which cause of action
arose
-
Concerned
Court,
therefore,
3 All. State of U.P. & Anr. Vs. Ashwani Kumar & Anr.
1495
competent to take cognizance u/s 142 -
Thus, summoning order and revisional
order cannot be faulted on ground of
limitation - Petition dismissed. (Para 4, 5,
22 to 24)

Writ petition dismissed. (E-13)

List of Cases cited:

1.
Kusum Ingots & Alloys Limited Vs Pennar Peters
on Securities Ltd, (2000) 2 SCC 745

2.
MSR Leathers Vs S. Palaniappan &
anr.,
(2013) 1 SCC 177

3.
Yogendra Pratap Singh Vs Savitri Pandey &
anr.,(2014) 10 SCC 713

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

1. Heard Sri Surendra Prasad Mishra,
learned counsel for the petitioner and Sri
Pankaj Saxena, learned A.G.A.-I along with
Ms.
Divya
Ojha,
learned
A.G.A.-I,
appearing for the State respondent.

2. The present petition has been filed
seeking to assail the order dated 02.12.2021
passed in Complaint Case No. 293 of 2021,
under Section 138 of the Negotiable
Instruments Act, 18811, in terms of which
the petitioner has been summoned, and also
the subsequent order dated 21.06.2023
passed in Criminal Revision No. 39 of
2022.

3. Counsel for the petitioner has
confined his challenge to the aforesaid
order only on the question of limitation.

4. Attention of the Court has been
drawn to the fact that a cheque drawn by
the petitioner, upon being presented by the
respondent no. 2, on 18.09.2019, was
returned unpaid by the bank, along with a
return memo dated 17.12.2019, with a
remark "Amount Insufficient".

5. Upon receipt of the aforesaid return
memo, the respondent no. 2 gave a notice
dated 04.01.2020 to the petitioner regarding
return of the cheque, and the said notice
was
received
by
the
petitioner
on
08.01.2020.

6. On the basis of the aforesaid notice,
counsel for the petitioner has sought to
contend that the limitation would run from
08.01.2020 i.e. the date when the legal
notice was received by the petitioner, and
the complaint having been filed on
20.02.2020, was beyond time, and was
liable to be rejected.

7. Learned A.G.A.-I submits that the
complaint having been filed within one
month from the date when the cause of
action arose, the same was within the
prescribed
period
of
limitation, and,
therefore, the orders passed by the courts
below cannot be faulted on the question of
limitation.

8. In order to examine the challenge
to the orders of the courts below, on the
ground of limitation, the events leading to
filing of the complaint may be summarized
as under:

DATE
EVENTS
18. 09. 2019 Cheque presented
17. 12. 2019 Return Memo by the bank
04.01.2020
Legal Notice
08.01.2020
Notice received
23.01.2020
Expiry of 15 days' period
from date of receipt of
1496 INDIAN LAW REPORTS ALLAHABAD SERIES
notice
20. 02. 2020 Complaint filed

9. The relevant statutory provisions,
as contained in Sections 138 and 142, may
also be reproduced, for ease of reference:-

"Section 138 - Dishonour of
cheque for insufficiency, etc., of funds in
the account- 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-

(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, 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."

"142. Cognizance of offences
(1) 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:

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.

(2) The offence under section 138
shall be inquired into and tried only by a
court within whose local jurisdiction,-

(a) if the cheque is delivered for
collection through an account, the branch
of the bank where the payee or holder in
due course, as the case may be, maintains
the account, is situated; or

(b) if the cheque is presented for
payment by the payee or holder in due
course, otherwise through an account, the
branch of the drawee bank where the
drawer maintains the account, is situated."

10. The proviso to Section 138
stipulates three distinct conditions, which
3 All. State of U.P. & Anr. Vs. Ashwani Kumar & Anr.
1497
must be satisfied, before the dishonour of a
cheque, may be held to constitute an
offence and become punishable: i.e. (i)
cheque is 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; (ii) 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, within thirty days of the receipt
of information by him from the bank
regarding the return of the cheque as
unpaid; (iii) 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.

11. It is only upon a cumulative
satisfaction
of
the
aforesaid
three
conditions, as enumerated under the
proviso to Section 138, as clauses (a), (b)
and (c), thereof that an offence under
Section 138, can be said to have been
committed by the person issuing the
cheque.

12. The provisions relating to
cognizance of offences is contained under
Section 142 of the N.I. Act. The section
starts with a non obstante clause, and in
terms
thereof,
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, and such complaint is to be made
within one month of the date on which the
cause-of-action arises under clause (c) of
the proviso to Section 138.

13. The proviso to clause (b) of subsection (1) of Section 142 prescribes 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.

14. A conjoint reading of the aforesaid
provisions would indicate that a complaint
under Section 138 can be filed within one
month of the date on which the cause-ofaction arises under clause (c) of the proviso
to Section 138, which happens as soon as
the drawer of the cheque fails to make
payment of the cheque amount to the payee
or to the holder in due course of the
cheque, within fifteen days of the receipt of
the notice required to be sent in terms of
clause (b) of the proviso to Section 138 of
the N.I. Act.

15. The cause-of-action having once
arisen, under clause (c) of the proviso to
Section 138, the payee or the holder of the
cheque acquires the right to institute
proceedings for prosecution under Section
138 of the N.I. Act, and the said right
remains legally enforceable for a period of
one month from the date on which the
cause-of-action has arisen. ]

16. The proviso to clause (b) of subsection (1) of Section 142 empowers the
court to take cognizance after expiry of the
prescribed period of one month from the
date of accrual of the cause-of-action, if the
complainant satisfies the court that he had
sufficient cause for not making a complaint
within such period.

17. The sequence of events starting
from
the
dishonour
of
cheque
for
insufficiency etc. of funds in the account to
the stage at which cognizance of the
1498 INDIAN LAW REPORTS ALLAHABAD SERIES
offence may be taken, as contemplated
under Sections 138 and 142 of the N.I. Act,
may be represented as follows:

Cheque drawn by the Drawer from his
account for discharge, in whole or part, of
any debt or
other liability.
Clause (a) to the proviso of Sec. 138 of the
Act
Presentation of Cheque 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.
Clause(b) of the proviso of S.138 of the Act
Payee/holder of cheque makes a demand
for payment of said amount by notice in
writing to the
drawer of cheque within 30 days of receipt
of information by the bank regarding return
of cheque as
unpaid.
CAUSE OF ACTION ARISES
After 15 days from the receipt of notice of
the demand.
Under Clause (b) of Section 142(1) of the
Act
Complaint to be made within one month of
the date on which cause of action arises.
Or
Under Proviso to Clause(b) of Sec. 142(1)
of the Act
After the prescribed period, if complainant
satisfies the Court that he has sufficient
cause for not making the
complaint.
COGNIZANCE MAY BE TAKEN BY
THE COURT
(if all 3 Conditions A,B & C are fulfilled)
Condition A
Condition B
Clause(c) to the proviso of S.138 of the Act
Drawer of such cheque fails to make
payment of said amount to the payee /
holder within 15 days of
the receipt of said notice.
Amount of money in the account is
insufficient to honour the cheque.
Amount exceeds the amount
arranged to be paid from that
account
or
Returned by the bank unpaid due to
either
Condition

18. The ingredients of Section 138 of
the N.I. Act were analyzed in the decision
in Kusum Ingots & Alloys Limited Vs.
Pennar Peterson Securities Ltd.2, and it
was observed that the following ingredients
would be required to be satisfied for
making out a case under Section 138 of the
N.I. Act:

"(i) a person must have drawn a
cheque on an account maintained by him in
a bank for payment of a certain amount of
money to another person from out of that
account for the discharge of any debt or
other liability;

(ii)
that
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;

(iii) that cheque is returned by the
bank unpaid, either because the amount of
money standing to the credit of the 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 the bank;

(iv) the payee or the holder in due
course of the cheque makes a demand for
3 All. Anil Kumar Agarwal Vs. M/s Devasheesh Business India Pvt. Ltd. & Ors.
1499
the payment of the said amount of money
by giving a notice in writing, to the drawer
of the cheque, within 15 days of the receipt
of information by him from the bank
regarding the return of the cheque as
unpaid;

(v) the drawer of such cheque
fails to make payment of the said amount
of money to the payee or the holder in due
course of the cheque within 15 days of the
receipt of the said notice."

19. The conditions precedent to
constitute an offence, as prescribed under
the proviso to Section 138, were subject
matter of consideration in MSR Leathers
Vs. S. Palaniappan And Another3 ,
wherein it was held that only upon
satisfaction
of
all
three
conditions
enumerated under clauses (a), (b) and (c) of
the proviso to Section 138, can an offence
be said to have been committed by the
person issuing the cheque.

20. Section 142 of the N.I. Act has
been considered
in
the
decision
in
Yogendra Pratap Singh Vs. Savitri
Pandey And Another4, and it has been
held that the said section prescribes the
mode and also the time within which a
complaint for an offence under Section 138
of the N.I. Act can be filed.

21. In the instant case, the cheque
drawn by the petitioner, was presented by
the respondent no. 2, on 18.09.2019, and
thereafter, on 04.01.2020 i.e. within thirty
days of the receipt of the return memo
dated 17.12.2019 from the bank, the
respondent no. 2 (payee) of the cheque,
gave notice to the petitioner and the said
notice was received by him on 08.01.2020.

22. The petitioner had 15 days' period
to make the payment of the said amount
from the date of receipt of notice, on
08.01.2020, and the said period expired on
23.01.2020. The cause of action for filing
the
complaint,
therefore,
arose
on
23.01.2020, as per clause (c) of the proviso
of Section 138.

23. The complaint having been filed
on 20.02.2020, was within the prescribed
period of one month as per clause (b) of
sub-Section (1) of Section 138, from the
date on which the cause of action arose on
23.01.2020, and accordingly the court
concerned would be within its right to take
cognizance of the offence, as provided
under Section 142.

24. The summoning order dated
02.12.2021 and the order dated 21.06.2023
passed in the revision, therefore, cannot be
faulted on the ground of limitation.

25. No other ground has been urged,
which may persuade this Court to exercise
its supervisory jurisdiction under Article
227 of the Constitution of India, in the facts
of the case.

26. The petition stands dismissed
accordingly.
----------
(2024) 3 ILRA 1499
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.02.2024

BEFORE

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

Matter Under Article 227 No. 8920 of 2023

Anil Kumar Agarwal ...Petitioners
Versus
M/s Devasheesh Business India Pvt. Ltd. &
Ors. ...Respondents