# Uday Yadav v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 783
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-14
- **Case number:** Application U/S 482. No. 28317 of 2022
- **Bench:** Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uday-yadav-v-state-of-u-p-anr-50021
- **Pages:** 9

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 311-Contradiction
in the St.ment of P.W.-2 in his examination in
chief in Trial of Applicant and his St.ment in the
Trial
of
co-accused-Applicant
moved
an
Application u/s 311Cr.P.C.-for permitting to
further
cross-examine
P.W.2-rejected-section
311 Cr.P.C. -mandatory to take any steps as
mentioned in the section if new evidence
appears to be essential to the just decision of
the case.

Application allowed. (E-9)

List of Cases cited:

## Text

4 All. Uday Yadav Vs. State of U.P. & Anr.
783
documents are relevant and admissible
under Sections 17, 22-A, 34, 35, 39, 45-A,
47-A, 59, 65-A, 65-B, 67-A, 73-A, 81-A,
85-A, 85-B, 85-C, 88, 88-A, 90-A, 131 of
the Evidence Act.

15. In R.M. Malkani Vs. State of
Maharashtra A.I.R 1973, Supreme Court
157, in Ram Singh and others Vs. Col.
Ram Singh 1985 (Supp.) S.C.C 616 and
the State (N.C.T) of Delhi (Supra) it has
been held that relevant conversation
recorded in the tap recorder is admissible in
evidence.

16. In Vikram Singh (Supra),
original tape record was considered as
primary evidence and it was held that
therefore the certificate under Section 65-B
of the Indian Evidence Act was not
required for its admissibility.

17. In Arjun Pandit Rao Kholkar Vs.
Kailash Kushan Rao Gorantyal and
others, A.I.R 2020 (S.C) 4908 (Three
Judges Bench), it has been held that if the
electronic document is secondary evidence,
the certificate required under Section 65-B
(4)
is
condition
precedence
to
the
admissibility of the evidence. The requisite
certificate is unnecessary, if the original
document itself is produced. This can be
done by the owner of the laptop, computer,
a computer tablet or even a mobile phone
by stepping into the witness box and
proving that the concerned evidence on
which the original information is first
stored, is owned and /or operated by him.

18. In cases, where the "computer",
as defined "happens to be a part of the
computer system" or "computer network"
and it becomes impossible to physically
bring such network or system to the court,
then the only means of proving information
contained in such electronic record can be
in accordance with Section 65-B (1),
together with the requisite certificate under
Section 65-B (4).

19. In this case it appears that the
learned
trial
court
has
rejected
the
application without being confirmed as to
whether the proposed electronic document
is primary evidence or the secondary
evidence.

20. Therefore, this Court is of the
considered view that the impugned order is
bad in law and it requires reconsideration
by the concerned court.

O R D E R

(21) The Application U/s 482 Cr.P.C
is allowed.

(22) The impugned order dated
02.08.2022 is hereby set aside.

(23) The learned Trial Court is
directed to decide the application of the
accused-applicant afresh in view of the
judgment passed by this Court after
affording sufficient opportunity.
----------
(2023) 4 ILRA 783
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.03.2023

BEFORE

THE HON'BLE SHIV SHANKER PRASAD, J.

Application U/S 482. No. 28317 of 2022

Uday Yadav ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Abhishek Kumar Yadav
784 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 311-Contradiction
in the St.ment of P.W.-2 in his examination in
chief in Trial of Applicant and his St.ment in the
Trial
of
co-accused-Applicant
moved
an
Application u/s 311Cr.P.C.-for permitting to
further
cross-examine
P.W.2-rejected-section
311 Cr.P.C. -mandatory to take any steps as
mentioned in the section if new evidence
appears to be essential to the just decision of
the case.

Application allowed. (E-9)

List of Cases cited:

1. V. N Patil Vs Niranjan Kumar & ors., reported
in (2021) 3 SCC 661

2. Varsha Garg Vs St. of M.P. & ors. reported
in2022 SCC OnLine SC 986

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. This application under Section
482 Cr.P.C. has been filed by the
applicant with a prayer to quash the order
dated 29th August, 2022 passed by the
Additional Sessions, Judge, Court No.15,
Allahabad in Sessions Trial No. 196 of
2015 (State of U.P. Vs. Uday Yadav),
arising out of Case Crime NO. 609 of
2014 under Section 302 I.P.C., Police
Station Dhoomanganj, District-Prayagraj,
whereby his application dated 25th
August, 2022 under Section 311 Cr.P.C.
praying for further cross-examination of
P.W.-2 has been rejected.

2. I have heard Mr. Abhishek Kumar
Yadav, learned counsel for the applicant
and the learned A.G.A. for the State as well
as perused the entire material available on
record.

3. The relevant facts as born out from
the records of the present application is as
follows:

For the alleged incident occurred
on 04.10.2014, first information report has
been lodged by opposite party no.2 which
came to be registered as Case Crime No.
609 of 2014 under section 147, 148, 149,
302 and 120-B I.P.C. Police Station-
Dhoomanganj,
District
Prayagraj
on
14.10.2021. After completion of statutory
investigation under Chapter XII Cr.P.C. the
Police
submitted
charge-sheet
under
Section 302 I.P.C. against the applicant and
co-accused Harish Chandra. On submission
of
the
charge-sheet,
the
concerned
Magistrate took cognizance and committed
the case to the Court of Sessions, where the
case was registered as Sessions Trial No.
196 of 2015 (State Vs. Harish Chandra and
Another). The charges against the applicant
and co- accused Harish Chandra were
framed by the learned additional Sessions
Judge/Special
Judge
(S.C./S.T.)
Act,
Allahabad on 10.07.2019. The charge
under section 25 of Arms Act was also
framed against the applicant on 10.07.2019
in S.T. No. 196 of 2015 (State Vs. Harish
Chandra and Others), arising out of Case
Crime No. 609 of 2014 under section 3/25
Arms Act. The Additional and District
Judge Court No.2 Allahabad passed the
order dated 18.10.2019 in the Session Trial
No. 196 of 2015 ( State of U.P. Vs. Harish
Chandra and Another) to separate the file
of accused Harish Chandra from the
Session Trial No. 196 of 2015 and the
original paper of the case was directed to
be kept in the trial of the applicant Uday
Yadav and considering the facts and
circumstances, a direction was issued by
the trial court to expedite the trial of the
applicant vide orders dated 16.10.2019 and
19.08.2019. The aforesaid case was taken
4 All. Uday Yadav Vs. State of U.P. & Anr.
785
up on 21.10.2019 before the trial court,
which passed the order dated 21.10.2019
fixing
22.10.2019
for
recording
the
statement of prosecution witness Smt.
Uma. The statement of P.W. 2 Pramod
Kumar Sonkar was recorded in the case
bearing S.T. No. 196 of 2015 (State Vs.
Uday Yadav), on 24.10.2019 and he was
cross-examined on 24.10.2019, 31.10.2019,
04.11.2019,
05.11.2019.
In
the
examination- in-chief, in the trial of the
applicant P.W.-2 has stated that the
applicant and co-accused Harish Chandra
fired upon the deceased by their countrymade pistols, whereas in the trial of coaccused Harish Chandra being Sessions
Trial No. 696 of 2019 (State vs. Harish
Chandra), on 24th May, 2022, P.W.-2 has
stated that he has not seen the person who
fired upon the deceased Roop Chandra.
When this very fact came to the knowledge
of the applicant that totally contradictory
statement has been given by P.W.-2
Pramod Kumar on 24.05.2022 in the S.T.
No. 696 of 2019, State vs. Harish Chandra,
the applicant moved an application under
Section 311 Cr.P.C. on 24.08.2022 in S.T.
No. 196 of 2015 (State Vs. Uday Yadav),
for permitting to further cross-examine
P.W. 2 Pramod Kumar with a view to elicit
the truth. The said application has been
rejected by the trial court under the order
impugned.

4. Learned counsel for the applicant
submits that the court below without
considering the materials available on the
record
and
ignoring
the
facts
and
circumstances of the case passed the
impugned order dated 29.08.2022 by which
the application bearing Paper No. 23-Kha
moved by the applicant under section 311
Cr.P.C.
has
been
rejected
without
application
of
mind
causing
serious
injustice to the applicant- accused. Learned
counsel for the applicant further submits
that the factum of hostility of the witness
P.W. 2 Pramod Kumar Sonkar was not
available when he was examined in S.T.
No. 196 of 2015 (State Vs. Uday Yadav)
hence the observation of the learned Court
below that the witness had already been
crossed-examined three times could not
have been ground to reject the application
for further cross examination on the basis
of his statement being recorded on
24.05.2022 in the S.T. No. 696 of 2019
(State vs. Harish Chandra). The applicant
could not have asked the questions relating
to the statement given after the conclusion
of his evidence in S.T. No. 196 of 2015
(State vs. Uday Yadav), since the evidence
of P.W. 2 Pramod Kumar Sonkar recorded
in S.T. No. 696 of 2019 (State vs. Harish
Chandra), was material for the fair decision
of the trial of S.T. No. No. 196 of 2015 and
unless the opportunity to bring the real
facts was not afforded to the applicant by
his cross-examination there are chances of
failure of justice.

5. Learned counsel for the applicant
further submits that the discretionary power
vested in the court was not exercised in
judicious manner and the application of the
applicant was rejected solely on the
ground that the cross- examination of the
witness has sufficiently been done which
could not have been the ground to reject
the
application
in
the
fact
and
circumstances of the present case. Unless
the witness is contradicted in respect of
the statements recorded in a judicial
proceeding, his evidence may not be
given importance unless his attention is
drawn to the statements made in the
judicial proceeding and as such his
further cross examination was important
and necessary for the fair and just
decision of this case.
786 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Learned counsel for the applicant
further submits that trial Court assumed
that the witness was being recalled to get
him declared hostile which could not be
proper and feasible, this reasoning is
uncalled for and based on assumption and
presumption only because the Court has
ample power to take action against the
witness if deposes totally against the
evidence
earlier
recorded
and
takes
summersault. For the ends of justice and to
unearth
the
truth
his
further
cross
examination was necessary.

On the cumulative strength of the
aforesaid,learned counsel for the applicant
submits that by the impugned order the
application under section 311 Cr.P.C.
moved by the applicant has been rejected
and 02.09.2022 has
been
fixed
for
argument
and
in
the
facts
and
circumstances of the case it is in the
interest of justice that this Hon'ble Court
may set aside the order impugned and
direct the court below to permit the
applicant to cross-examine P.W.-2 again
under Section 311 Cr.P.C.

7. On the other-hand, learned A.G.A.
submits that there is no illegality or
infirmity in the order passed by the court
below so as to warrant any interference by
this Court under Section 482 Cr.P.C.

8. I have considered the submissions
made by the learned counsel for the parties
and have examined the records of the
present application specifically the order
impugned rejecting the application of the
applicant to cross-examine P.W.-2 once
again.

9. The court below while passing the
impugned order has recorded its finding
that the argument advanced by the learned
counsel for the accused-appellant/applicant
that in the case in hand, charges against the
two
accused
Uday
Yadav
and
Harishchandra
were
framed
together
earlier, but after some time the file of coaccused Harishchandra was separated and
the statement of P.W.-2 Pramod Kumar
Sonkar has been recorded separately in
both the trial cases, in which there are
many contradictions, therefore, in such a
situation it is necessary to summon the
same witness again has been found to be of
no force. For the said opinion, the ground
taken by the court below is that it is not
proper to summon the witness Pramod
Kumar Sonkar again in the present case, as
in the present case the statement of witness
Pramod Kumar Sonkar has been recorded
on 24.10.2019 and the cross-examination of
the said witness has been done on
31.10.2019, 04.11.2019 and 05.11.2019.
The trial court has further recorded its
finding that after the statement of all the
other witnesses, the trial case is currently at
the stage of argument. The trial court has
opined that there is no ground for calling
the same witness merely in anticipation of
his turning hostile. In the light of the above
discussion, the trial court has come to the
conclusion that it is not just and expedient
to summon the same witness again in the
hope of turning hostile, as such the trial
court has held that application under
Section 311 of the Code of Criminal
Procedure is not maintainable and therefore
deserves to be quashed under the order
impugned.

10. On deeper scrutiny of the
impugned order as well as the submissions
made by the learned counsel for the
applicant, this Court is of the opinion that
on one hand, the trial court seems to be
correct that trial case of the applicant could
be delayed for reaching its logical end due
4 All. Uday Yadav Vs. State of U.P. & Anr.
787
to repeated summon of witnesses (crossexamination of P.W.-2 in the facts of the
case) but this Court cannot loose sight of
the fact that for the logical conclusion, the
accused and the litigant should be given
enough
opportunity
to
plead
their
respective case. It is no doubt true that in
the trial case of the applicant being
Sessions Trial No. 196 of 2015, on three
occasions, the cross-examination of P.W.-2
has been done and the applicant has been
afforded ample opportunity to crossexamine the said witness. However, when
the applicant came to know that same
witness Pramod Kumar Sonkar has been
declared hostile in the same case crime
registered for the offence of murder of
the same deceased but in different session
case of co-accused being Session Trial
No. 696 of 2019, the prayer of the
applicant to permit him to cross-examine
P.W.-2 again in his trial case under
Section 311 Cr.P.C. cannot be ignored in
the interest of substantial justice. It would
be very strange that for the same offence
in the same criminal case but in the
different trial cases of two criminals, on
the basis of different statements of the
same person, different views will come
for both the accused. It is well settled that
justice should not only be done but also
seen to be done.

11. This Court is conscious of the fact
that the provisions contained in Section 311
Cr.P.C. confer the power of wide amplitude
on the court concerned to summon,
examine, recall and re-examine such
person.

12. For ready reference, Section 311
Cr.P.C. is reproduced herein-under:-

"311. Power to summon material
witness, or examine person present.

Any Court may, at any stage of
any inquiry, trial or other proceeding
under this Code, summon any person as a
witness,
or
examine
any person
in
attendance, though not summoned as a
witness,
or
examine
any person
in
attendance, though not summoned as a
witness, or recall and re-examine any
person already examined; and the Court
shall summon and examine or recall and
re-examine any such person if his evidence
appears to it to be essential to the just
decision of the case."

13. From perusal of Section 311
Cr.P.C., it is apparent that this section is
divisible in two parts. In the first part
discretion is given to the Court and enables
it at any stage of an inquiry, trial or other
proceedings under the Code, (a) to summon
any one as a witness, or (b) to examine any
person in the Court, or (c) to recall and reexamine any person whose evidence has
already been recorded; on the other hand,
the second part appears to be mandatory
and requires the Court to take any of the
steps mentioned above if the new evidence
appears to be essential to the just decision
of the case.

14. The ambit and scope of Section
311 Cr.P.C. have been considered very
recently by Supreme Court in V. N Patil
Vs.
Niranjan
Kumar
and
Others,
reported in (2021) 3 SCC 661, where in
following has been observed in paragraphs
14, 15, 16 and 17:-

"14.
The
object
underlying
Section 311 CrPC is that there may not be
failure of justice on account of mistake of
either party in bringing the valuable
evidence on record or leaving ambiguity in
the statements of the witnesses examined
from either side. The determinative factor
788 INDIAN LAW REPORTS ALLAHABAD SERIES
is whether it is essential to the just decision
of the case. The significant expression that
occurs
is
"at
any
stage..................................................

..............................................................
..............................

15. The principles related to the
exercise of the power under Section 311
CrPC have been well settled by this Court
in Vijay Kumar Vs. State of Uttar Pradesh
and Another: (SCCp. 141, para 17)

"17. Though Section 311 confers
vast discretion upon the court and is
expressed in the widest possible terms, the
discretionary power under the said section
can be invoked only for the ends of justice.
Discretionary power should be exercised
consistently with the provisions of the Code
and the principles of criminal law. The
discretionary
power
conferred
under
Section 311 has to be exercised judicially
for reasons stated by the court and not
arbitrarily or capriciously. Before directing
the learned Special Judge to examine Smt
Ruchi Saxena as a court witness, the High
Court did not examine the reasons assigned
by the learned Special Judge as to why it
was not necessary to examine her as a
court witness and has given the impugned
direction without assigning any reason."

16. This principle has been
further reiterated in Mannan Shaikh and
Others Vs. State of West Bengal and
Another and thereafter in Ratanlal Vs.
Prahlad Jat and Others and Swapan
Kumar Chatterjee Vs. Central Bureau of
Investigation ( Swapan Kumar Chatterjee
case SCC p.331, paras 10-11. The relevant
paras of Swapan Kumar Chatterjee(supra)
are as under: "10. The first part of this
section which is permissive gives purely
discretionary authority to the criminal
court and enables it at any stage of inquiry,
trial or other proceedings under the Code
to act in one of the three ways, namely, (i)
to summon any person as a witness; or (ii)
to examine any person in attendance,
though not summoned as a witness; or (iii)
to recall and re examine any person
already examined. The second part, which
is mandatory, imposes an obligation on the
court (i) to summon and examine or (ii) to
recall and re examine any such person if
his evidence appears to be essential to the
just decision of the case.

11. It is well settled that the
power conferred under Section 311 should
be invoked by the court only to meet the
ends of justice. The power is to be
exercised only for strong and valid reasons
and it should be exercised with great
caution and circumspection. The court has
vide power under this section to even recall
witnesses for re-examination or further
examination, necessary in the interest of
justice, but the same has to be exercised
after taking into consideration the facts and
circumstances of each case. The power
under this provision shall not be exercised
if the court is of the view that the
application has been filed as an abuse of
the process of law."

17. The aim of every Court is to
discover the truth. Section 311 CrPC is one of
many such provisions which strengthen the arms
of a court in its effort to unearth the truth by
procedure sanctioned by law. At the same time,
the discretionary power vested under Section
311 CrPC has to be exercised judiciously for
strong and valid reasons and with caution and
circumspection to meet the ends of justice."

15. In Varsha Garg Vs. State of
Madhya Pradesh & Others reported in
4 All. Uday Yadav Vs. State of U.P. & Anr.
789
2022 SCC OnLine SC 986 in paras 31 to 37
the Hon'ble Spreme Court has held as
under:-

"31. Having clarified that the bar
under Section 301 is inapplicable and that
the appellant is well placed to pursue this
appeal, we now examine Section 311 of
CrPC. Section 311 provides that the Court
"may":

(i) Summon any person as a
witness or to examine any person in
attendance, though not summoned as a
witness; and

(ii) Recall and re-examine any
person who has already been examined.

32. This power can be exercised
at any stage of any inquiry, trial or other
proceeding under the CrPC. The latter part
of Section 311 states that the Court "shall"
summon and examine or recall and reexamine any such person "if his evidence
appears to the Court to be essential to the
just decision of the case". Section 311
contains a power upon the Court in broad
terms. The statutory provision must be read
purposively, to achieve the intent of the
statute to aid in the discovery of truth.

33. The first part of the statutory
provision which uses the expression "may"
postulates that the power can be exercised at
any stage of an inquiry, trial or other
proceeding. The latter part of the provision
mandates the recall of a witness by the Court
as it uses the expression "shall summon and
examine or recall and reexamine any such
person if his evidence appears to it to be
essential to the just decision of the case".
Essentiality of the evidence of the person who
is to be examined coupled with the need for
the just decision of the case constitute the
touchstone which must guide the decision of
the Court. The first part of the statutory
provision is discretionary while the latter
part is obligatory.

34. A two judge Bench of this
Court in Mohanlal Shamji Soni (supra) while
dealing with pari materia provisions of
Section 540 of the Criminal Code of
Procedure 1898 observed:

"16. The second part of Section
540 as pointed out albeit imposes upon the
court an obligation of summoning or
recalling and re-examining any witness and
the only condition prescribed is that the
evidence sought to be obtained must be
essential to the just decision of the case.
When any party to the proceedings points out
the desirability of some evidence being taken,
then the court has to exercise its power under
this provision -- either discretionary or
mandatory -- depending on the facts and
circumstances of each case, having in view
that the most paramount principle underlying
this provision is to discover or to obtain
proper proof of relevant facts in order to
meet the requirements of justice."

35. Justice S Ratnavel Pandian,
speaking for the two judge Bench, noted that
the power is couched in the widest possible
terms and calls for no limitation, either with
regard to the stage at which it can be
exercised or the manner of its exercise. It is
only circumscribed by the principle that the
"evidence to be obtained should appear to the
court essential to a just decision of the case
by getting at the truth by all lawful means."
In that context the Court observed:

"18 ...Therefore, it should be
borne in mind that the aid of the section
should be invoked only with the object of
discovering relevant facts or obtaining
790 INDIAN LAW REPORTS ALLAHABAD SERIES
proper proof of such facts for a just
decision of the case and it must be used
judicially
and
not
capriciously
or
arbitrarily because any improper or
capricious exercise of the power may lead
to undesirable results. Further it is
incumbent that due care should be taken by
the court while exercising the power under
this section and it should not be used for
filling up the lacuna left by the prosecution
or by the defence or to the disadvantage of
the accused or to cause serious prejudice to
the defence of the accused or to give an
unfair advantage to the rival side and
further the additional evidence should not
be received as a disguise for a retrial or to
change the nature of the case against either
of the parties."

36. Summing up the position as it
obtained from various decisions of this
Court, namely Rameshwar Dayal v. State
of U.P.19, State of W.B. v. Tulsidas
Mundhra20, Jamatraj Kewalji Govani v.
State of Maharashtra21, Masalti v. State of
U.P.22, Rajeswar Prosad Misra v. State of
W.B.23 and R.B. Mithani v. State of
Maharashtra24, the Court held:

27. The principle of law that
emerges from the views expressed by this
Court in the above decisions is that the
criminal court has ample power to summon
any person as a witness or recall and reexamine any such person even if the
evidence on both sides is closed and the
jurisdiction of the court must obviously be
dictated by exigency of the situation, and
fair play and good sense appear to be the
only safe guides and that only the
requirements of justice command the
examination of any person which would
depend on the facts and circumstances of
each case."

37. The power of the court is not
constrained by the closure of evidence.
Therefore, it is amply clear from the above
discussion that the broad powers under
Section 311 are to be governed by the
requirement of justice. The power must be
exercised wherever the court finds that any
evidence is essential for the just decision of
the case. The statutory provision goes to
emphasise that the court is not a hapless
bystander in the derailment of justice.
Quite to the contrary, the court has a vital
role to discharge in ensuring that the cause
of discovering truth as an aid in the
realization of justice is manifest."

13. The provisions contained in
Section 311 Cr.P.C., being germane to the
present controversy, are extracted herein
below:-

"311. Power to summon
material witness, or examine person
present.-- Any Court may, at any stage of
any inquiry, trial or other proceeding
under this Code, summon any person as a
witness,
or
examine
any person
in
attendance, though not summoned as a
witness, or recall and re-examine any
person already examined; and the Court
shall summon and examine or recall and
re-examine any such person if his evidence
appears to it to be essential to the just
decision of the case."

(emphasis supplied)

16. In view of the above discussions
and deliberations, this Court opines that to
meet the ends of justice, the door cannot be
shut against the accused persons without
giving opportunity to cross-examine the
witness only after he came to know that in
another sessions trial the same witness has
turned hostile.
4 All. Pawan Garg Vs. State of U.P. & Anr.
791

17. Accordingly, the order impugned
passed by the trial court dated 29th August,
2022 passed by the Additional Sessions
Judge, Court No.15, Allahabad in Session
Trial No. 196 of 2015 (State Vs. Uday
Yadav), arising out of Case Crime No. 609
of 2014 under Section 302 I.P.C., Police
Station-Dhoomanganj,
District-Allahabad
rejecting the application filed by the
applicant under Section 311 Cr.P.C. for
further cross-examination of P.W.-2 is set
aside. The trial court is directed to fix a
date for cross-examination of P.W.-2 again
by
the
applicant
in
the
changed
circumstances.

18. With the aforesaid directions, the
present application stands allowed.

19. It is made clear that this Court has
not expressed any opinion on the merits of
the sessions trial no. 196 of 2015.
----------
(2023) 4 ILRA 791
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application U/S 482. No. 28748 of 2022

Pawan Garg ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Shyam Shankar Mishra, Sri Vijay Kumar
Mishra

Counsel for the Opposite Parties:
G.A.

Negotiable Instrument Act- Section 138Cheque dishonor-issued by a firm through its
proprietor Smt. Kajal Garg-no name of the
Applicant in the e-way bill GST documents as
Proprietor, Director or owner-arrayed in the
complain to mount pressure upon the Applicant
being husband of Smt. Kajal Garg-Applicant not
guarantor, nor authorized signatory of agent of
his wife-husband and wife are separate legal
entity-summoning order is bad-Application
allowed. (E-9)

List of Cases cited:

St. of Har. Vs Ch. Bhajan Lal AIR 1992 SC 604

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Shyam Shankar Mishra,
learned counsel for the applicant, Sri
Pankaj Tripathi, learned A.G.A for the
State and perused the record.

2. This application has been filed by
the application to quash the entire criminal
proceedings in Criminal Complaint Case
No. 12120 of 2020 - R & S Air
Conditioning Vs. M/s Aircon Gallery,
under Section 138 N.I Act, pending in the
Court of Civil Judge (Junior Division),
F.T.C. / Judicial Magistrate, Ghaziabad.

3. In brief, facts of the case are that
opposite party no. 2 instituted a complaint
under Section 138 of the N.I. Act, against
the applicant and his wife Smt. Kajal Garg
and M/s Aircan Galary through it's
Proprietor Smt. Kajal Garg (wife of the
applicant), stating that opposite party no. 3
Smt. Kajal Garg is the proprietor of
partnership firm of opposite party no. 1,
and opposite party no. 2 is Manager /
recognized person, main officer. Opposite
Party Nos. 2 and 3 are regulating the firm
together, which is involved in installation,
fitting of ducting and fabrication work.
There have been business relations between
Sachin Sharma, the proprietor of the
complainant firm and opposite party no. 2