# Uma Shankar v. State of U.P. & Anr

- **Citation:** Application U/S 482 No. 37200 of 2010
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-24
- **Case number:** Application U/S 482 No. 37200 of 2010
- **Bench:** Naheed Ara Moonis
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uma-shankar-v-state-of-u-p-anr-46205
- **Pages:** 7

## Headnote

Criminal Law-Negotiable Instruments Act
(26 of 1881)-Section.142 - Negotiable
Instruments
(Amendment
and
Miscellaneous Provision) Act, (55) 2002 -
amendment
of
Section
142
w.e.f.
-
6.2.2003-Dishonour of cheque - Complaint
- Limitation - 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 the complaint within
such period - no need for filing an
application separately under Section 5 of
the Limitation Act

Complainant fell seriously ill & was bed ridden
so she could not file complaint within time -
Complainant filed medical certificate along with
complaint - Complaint filed onon 1.5.2006
i.e.after amendment of S.142 came into force -
Hence complaint not barred by limitation.
(Para 18 19)

Application dismissed (E-5)

Cases relied on:

Subodh S. Salaskar Vs. Jayprakash M. Shah U.P.
Criminal Rulings 2008 (3) 614

## Text

1718 INDIAN LAW REPORTS ALLAHABAD SERIES
in the light of the aforesaid observations
and the law as discussed above.
----------

(2020)03-05ILR A1718
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.02.2020

BEFORE
THE HON'BLE NAHEED ARA MOONIS, J.

Application U/S 482 No. 37200 of 2010

Uma Shankar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Bharat Bhushan Paul, Sri S.P. Sharma

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

Criminal Law-Negotiable Instruments Act
(26 of 1881)-Section.142 - Negotiable
Instruments
(Amendment
and
Miscellaneous Provision) Act, (55) 2002 -
amendment
of
Section
142
w.e.f.
-
6.2.2003-Dishonour of cheque - Complaint
- Limitation - 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 the complaint within
such period - no need for filing an
application separately under Section 5 of
the Limitation Act

Complainant fell seriously ill & was bed ridden
so she could not file complaint within time -
Complainant filed medical certificate along with
complaint - Complaint filed onon 1.5.2006
i.e.after amendment of S.142 came into force -
Hence complaint not barred by limitation.
(Para 18 19)

Application dismissed (E-5)

Cases relied on:

Subodh S. Salaskar Vs. Jayprakash M. Shah U.P.
Criminal Rulings 2008 (3) 614

(Delivered by Hon'ble Naheed Ara
Moonis, J.)

1. Heard learned counsel for the
applicants, the learned AGA for the State
and perused the record.

2. The instant application has been
filed invoking the inherent powers of this
court under Section 482 Cr.P.C. to quash
the proceeding of complaint Case No. 1288
of 2010 whereby the applicant has been
summoned to face trial under Section 138
of Negotiable Instrument Act, police
station M.M. Gate, district Agra and the
order dated 18.10.2010 passed by the
Additional Chief Judicial Magistrate-II,
Agra in the aforesaid case.

3. The submission of the learned
counsel for the applicant is that the
applicant is maliciously being prosecuted
pursuant to the complaint lodged by the
opposite party no.2 under Section 138 of
Negotiable Instrument Act on 1.5.2006. It
is alleged in the complaint that the opposite
party no.2 had sold her two plots to the
wife of the applicant for consideration of
Rs. 5 lacs, the payment whereof was given
by two cheques. One cheque was honour
by the bank while another cheque no.
546759 dated 25.6.2005 was dishonoured
by the bank with the memorandum dated
21.12.2005 mentioning "not arranged for".
It was mentioned in the complaint that the
opposite party no.2 had sent a registered
notice on 4.1.2006 but the same was never
received by the applicant and has been
alleged that despite service of notice no
reply was given by the applicant nor made
any payment. On the basis of the aforesaid
complaint dated 1.5.2006 the statements of
3-5 All. Uma Shankar Vs. State of U.P. & Anr.
1719
the
complainant
and
witnesses
were
recorded and the court below proceeded to
summon the applicant to face trial by order
dated 24.5.2006 under Section 138 of
Negotiable Instrument Act. The court
below has further observed that no prima
facie offence is made out under Section 420
I.P.C.

4. Aggrieved by the summoning order
dated 24.5.2006 the applicant challenged
the proceeding before this court by filing
Criminal Misc. Application No. 642 of
2008, which was disposed of with the
direction to the applicant to surrender
before the court below and apply for bail
and file objection. In pursuance of the order
of this court the applicant had surrendered
before the court below and was released on
bail. The applicant has filed objection
denying the contents of the complaint and
submitted that in the registered sale deed
only one cheque of Rs. 2,50,000/- was
mentioned,
which
was
honoured
on
28.6.2005 by the bank in favour of the
opposite party no.2 and Rs. 2,50,000/- was
given to the opposite party no.2 in cash.
The second cheque in dispute was given as
guarantee of which stop payment was done
by the applicant on 12.7.2005 as one
cheque, which was issued in favour of the
opposite party no.2 was also cleared in
respect of the sale consideration. In the
objection the applicant has also denied that
no notice whatsoever was received by the
applicant. Specific plea was raised in
respect of filing the complaint as barred by
limitation as the complainant has filed the
complaint after four months on 1.5.2006
whereas it ought to have been filed on
19.2.2006 after expiry of 15 days notice.
This objection has been rejected by the
court below wholly on erroneous ground by
holding that such objection cannot be
decided at this stage, which will be
considered at the time of hearing of the
case.

5. The said order was passed on
16.10.2008, as such the same was again
challenged before this court by filing 482
Petition No. 3009 of 2009. The petition was
allowed and another Bench of this court
quashed
the
order
dated
16.10.2008
directing the court below to consider the
question of maintainability of complaint
first then proceed with the trial "if need
arises for the same".

6. In pursuance of the direction of this
court
the
learned
Magistrate
after
considering
the
arguments
qua
the
objection raised by the applicant with
regard to maintainability of the complaint
rejected the objection on 18.10.2010, hence
this petition has been filed. The learned
Magistrate has committed manifest error in
accepting that the complaint has been filed
by
the
opposite
party
no.2
was
maintainable and filed well within time for
which no separate application is required
for condoning the delay and maintained the
order summoning the applicant to face trial
under Section 138 of Negotiable Instrument
Act. When the complaint itself barred by
time of which no plausible explanation was
given by moving a separate application to
condone the delay in filing the appeal the
hence prosecution of the applicant suffers
from manifest error of law.

7. The learned counsel for the
applicant has relied upon the decision of
the Apex Court in U.P. Criminal Rulings
2008 Volume 3 Page 614 Subodh S.
Salaskar Vs. Jayprakash M. Shah and
another and submitted that it has been
specifically held that in the matter of
dishonour of cheque unless condition
precedent for taking cognizance are not
1720 INDIAN LAW REPORTS ALLAHABAD SERIES
satisfied cognizance of offence cannot be
taken. Reliance has been paced in paras 23
and 24 of the aforesaid case, which is
delineated herein as under;

" 23. The complaint petition
admittedly was filed on 20.04.2001. The
notice having been sent on 17.01.2001, if
the presumption of service of notice within
a reasonable time is raised, it should be
deemed to have been served at best within
a period of thirty days from the date of
issuance thereof, i.e., 16.02.2001. The
accused was required to make payment in
terms of the said notice within fifteen days
thereafter, i.e., on or about 2.03.2001. The
complaint petition, therefore, should have
been filed by 2.04.2001."

"24. Ex facie, it was barred by
limitation. No application for condonation
of delay was filed. No application for
condonation of
delay
was
otherwise
maintainable. 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. The
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, 1963 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."

8. Considering the dictum of the Apex
Court the court directed not to take
coercive action against the applicant while
issuing notice to the opposite party no.1 on
23.11.2010. Thereafter the aforesaid order
was confirmed by order dated 16.9.2011
staying further proceeding of the case.
Despite service of notice no counter
affidavit has been filed on behalf of the
opposite party no. 2. However, the court
below has now proceeded against the
applicant in view of the order of the
Hon'ble Apex Court in the case of Asian
Resurfacing of Road Agency Pvt. Ltd. and
others Vs. Central Bureau of Investigation,
AIR 2018 SC 2039 that the proceedings
shall not be stayed after expiry of six
months and hence the court below by order
dated 30.3.2019 has issued non bailable
warrant against the applicant.

9. It is further submitted by the
learned counsel for the applicant that
issuance of non bailable warrant against the
applicant is liable to be quashed and also
the further proceeding of the case as the
complaint itself is not maintainable, which
was filed beyond the period of limitation of
which no separate application was moved
for condoning the delay in filing the
complaint, which is the requirement of the
law.

10. The learned A.G.A. has refuted
the submission of the learned counsel for
the applicant and contended that the order
passed by the court below way back on
3-5 All. Uma Shankar Vs. State of U.P. & Anr.
1721
24.5.2006 summoning the applicant to face
trial does not suffer from any error much
less any error of law and the case, which
has been cited by the learned counsel for
the applicant on the basis of which the
proceeding has been stayed would not
apply
in
the
present
facts
and
circumstances of the case. The disputed
question of fact with respect to execution of
the sale deed in consideration of Rs. 5 lacs
is not disputed at all by the applicant. The
opposite party no.2 was handed over two
cheques by the applicant. Each of Rs.
2,50,000/-. The applicant had got the sale
deed executed in the name of his wife Smt.
Prabha Sharma of which reference has been
given in the sale deed. As one cheque
issued by the applicant was encashed, the
other cheque of Rs. 2,50,000/- was returned
due to insufficiency of fund in the account
of the applicant on 21.12.2005 and hence a
legal notice was given by the opposite party
no.2 on 4.1.2006 of which neither any reply
was given nor payment of the cheque
amount was paid and hence the complaint
was filed on 1.5.2006 by the opposite party
no.2. The opposite party no.2 in paragraph
6 of the complaint has specifically given
reason for not filing the complaint earlier as
she was seriously ill and her treatment was
going on in Ganga Nursing Home,
Rambagh, Agra and was advised by the
Doctor for complete bed rest from 1.2.2006
to 27.4.2006 and in this regard the Doctor
has issued a certificate, which was
appended along with the complaint. As the
applicant has committed fraud with the
opposite party no. 2 who got the sale deed
executed surreptitiously in the name of his
wife and the cheque was given when there
was no amount of Rs. 2,50,000/- in his
account on account of which the cheque
was dishonoured and hence the complaint
was filed on 1.5.2006 by the opposite party
no. 2. After taking into account the oral and
documentary evidence the learned court
below proceeded
to
pass
the order
summoning the applicant to face trial. So
far as the filing of the complaint not within
time is concerned the objection of the
applicant is absolutely baseless which is
only in order to linger on the proceeding as
twice the court below has rejected the same
after considering the provisions of law
regarding maintainability, as such the
applicant has ample opportunity to raise the
objection with respect to the disputed
question of fact at the appropriate stage
before the trial court. Hence the present
482 petition is liable to be dismissed.

11. This court has given anxious
consideration to the arguments advanced by
the learned counsel for the applicant and
the learned A.G.A. for the State.

12. So far as the question raised by
the learned counsel for the applicant that
the complaint is barred by limitation for
which no separate application has been
filed to condone the delay in filing the
complaint, it is necessary to deal the
provisions of Sections 138 and 142 of the
Act.

"138 - Dishonour of cheque for
insufficiency, etc., of funds in the account
*** *** *** 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
1722 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

Section 142 of the Act also puts a
limitation in the power of the court to take
cognizance of the offences, which reads as
under:

"142 . Cognizance of offences
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 causeof-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."

13. The language used in Section 138
of the Act is based upon five components,
namely, (i) drawing the cheque, (ii)
presentation of cheque to the bank, (iii)
returning of the cheque unpaid by the
drawer,(iv) giving notice in writing to the
drawer of the cheque demanding payment
of the amount and (v) failure of the drawer
to make payment within 15 days of receipt
of the notice.

14. In the present case the disputed
cheque no. 546749 dated 25.6.2005 of Rs.
2,50,000/- of State Bank of India, Sadar
Bazar,
Agra
handed
over
to
the
complainant by the applicant, which bears
his signature and on giving assurance by
the applicant when the cheque was
deposited by the opposite party no.2 in her
account after five months in Punjab
National Bank, Agra, the same was
returned
with
the
endorsement
of
"insufficient fund" in the account of the
applicant on 21.12.2005, hence a legal
notice was given with respect to the
dishonour of the cheque by the complainant
through registered post on 4.1.2006, which
was received by the applicant but even after
expiry of 15 days when the required
amount was not paid by the applicant the
complaint
was
filed
on
1.5.2006
specifically bringing to the notice that as
she fell ill she could not file the complaint
within the time and in this regard she has
filed medical certificate of the Doctor along
with the complaint even during this period
also the applicant had not paid the due
amount to the opposite party no. 2.

15. The contention of the counsel for
the applicant is that the requirement of
Section 142 has not been complied with yet
the cognizance has been taken by the court
below suffers from manifest error in view
of the decision of the Apex Court in
3-5 All. Uma Shankar Vs. State of U.P. & Anr.
1723
Subodh S. Salaskar Vs. Jayprakash M. Shah
would not apply in the present circumstance of
the case. The case of Subodh S. Salaskar Vs.
Jayprakash M. Shah (supra) was in relation to
the complaint, which was filed under Section
138 of the Act on 20.4.2001. In that case the
notice was issued on 16.2.2001 then the
complaint petition should have been filed by
2.4.2001, which was filed on 20.4.2001. Thus it
is evident that the complaint in the said case
was filed prior to the amendment of Section
142 of the Act.

16. The amendment in Clause (b) of
Section 142 of the Act has been added by
the Negotiable Instruments (Amendment
and Miscellaneous Provision) Act, (55)
2002 with effect from 6.2.2003, which
delineates here as under;

"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 the complaint within such period."

17. Thus this amended provision was
not applicable when the complaint was
filed in Subodh S. Salaskar Vs. Jayprakash
M. Shah's case for which a separate
application for condoning the delay was
required to be filed as per the provisions of
t he Limitation Act. The Apex Court has
held that the proviso to Clause (b) of
Section 142 of the Act was inserted in 2002
could not have been retrospective effect,
which is a substantive provision, hence the
proceeding was quashed holding the
complaint in the said case was not filed
within time and held that the learned
Magistrate had no jurisdiction to take
cognizance under Section 138 of the Act.

18. By virtue of the amendment the
proviso added in 2002 under Section 142 of
the Act does not lay any requirement for
filing an application separately under
Section 5 of the Limitation Act. The
present complaint was filed in 2006 after
the amendment has came into force. Thus
according to the proviso if the complainant
has put forth the reason in the complaint
itself for not filing the complaint within
time and the learned Magistrate is satisfied
that delay has been explained can take
cognizance of the offence as such the said
case is not applicable in the present facts
and circumstances of the case. It is not
incumbent upon the opposite party no.2 to
file separate application for condoning the
delay in filing the complaint in view of the
proviso to Section 142 of the Act. The
complainant had satisfied that she had
sufficient cause for not making a complaint
within the prescribed period as there is an
explanation of the delay in filing the
complaint the learned court below has
committed no error in rejecting the
objection of the applicant in the light of the
amended proviso of Section 142 of the Act
who however succeeded in getting the
proceeding of the present case stalled for a
long period. The other factual aspect of the
case cannot be decided at the threshold,
which is the subject matter of trial. Thus it
cannot be said that the filing of complaint
was barred by limitation, the learned
Magistrate
has
rightly
rejected
the
objection filed by the applicant by
impugned order dated 18.10.2010 which
does not call for any interference. The
applicant has utterly failed to make out any
case that the cognizance is bad in law,
hence there is no justifiable reason to quash
the
proceeding
pending
against
the
applicant since 2010.

19. The application is absolutely
misconceived and is accordingly dismissed.
The interim order is hereby vacated. The
1724 INDIAN LAW REPORTS ALLAHABAD SERIES
disputed
questions
of
fact
will
be
considered
by
the
court
below
in
accordance with law and it is expected that
as the proceeding is pending since long the
court below shall proceed with the case on
its own merit expeditiously in accordance
with law after giving opportunity of
hearing to both the parties.

20. Since the non bailable warrant had
already been issued against the applicant,
he is directed to appear before the court
concerned within three weeks and apply for
bail, which shall be considered by the court
below in accordance with law.

21. The office is directed to
communicate this order to the court below
through FAX forthwith for information and
necessary compliance.
----------
(2020)03-05ILR A1724
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.11.2019

BEFORE
THE HON'BLE AJIT SINGH, J.

Application U/S 482 No. 38681 of 2019

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

Counsel for the Applicants:
Sri Arvind Kumar, Sri Abhishek Narayan
Pandey, Sri Rajiv Lochan Shukla

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

Criminal Law-Criminal Procedure Code,
1973 - Section 193 - Cognizance of
offence - cognizance for the second time
u/s 193 CrPC by the Session Court not
permissible by law - cognizance of an
offence can only be taken once - if once
the cognizance of the offence has been
taken
by
the
Sessions
Court
after
committal of the case to it & trial has
commenced - then again the Sessions
Court cannot go back & take further
cognizance of the case again u/s 193 CrPC
and summon other accused - if the trial
court
considers
after
evaluating
the
evidence which has come during trial then
the trial court may proceed against the
persons, who appears to be guilty with the
aid of Section 319 Cr.P.C. (Para 16, 17, 18)

FIR against 13 named persons - ten persons
were chargesheeted - cognizance taken by trial
court on 31.08.2018 against all ten persons -
prosecution moved application u/s 193 CrPC that
police had not submitted any report against three
accused-persons - it was prayed that those three
accused be arrayed as an accused - trial court
took further cognizance and summoned those
three accused for trial on 18.09.2019 - Held -
Trial court order illegal (Para 18)

Application allowed (E-5)

List of cases cited :

1. Dharm Pal & ors. Vs St. of Haryana & ors.
2014 3 SCC 306

2.Hardeep Singh Vs St. of Punjab & ors. 2014 3
SCC 92

3.Y. Saraba Reddy Vs Puthur Rami Reddy & anr.
2007 4 SCC 773

4.Minu Kumari Vs St. of Bihar (2006) 4 SCC 359

5. Balveer Singh Vs St. of Rajasthan (2016) 6
SCC 680

(Delivered by Hon'ble Ajit Singh, J.)

1. Heard Sri Rajiv Lochan Shukla,
learned counsel for the applicants, Sri Ravi
Prakash Pandey, learned AGA for the State and
perused the material available on record.

2. The present application under
Section 482 Cr.P.C. has been filed by the