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

- **Citation:** (2024) 5 ILRA 894
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-23
- **Case number:** Application U/s 482 No. 17464 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-kumar-v-state-of-u-p-anr-52096
- **Pages:** 7

## Headnote

Law-Criminal
Procedure
Code,1973-Section
482-Negotiable
Instruments
Act,
1881-Section
138challenge to entire proceedings-dishonour
of cheque- missing cheque-account closedthis is considered equivalent to insufficient
funds in the account, the drawer can be
held liable-a statutory presumption arises
u/s 139 of the NI Act that the cheque was
issued in discharge of a debt or liability-this
presumption must be rebutted by the
drawer during the trial-The court held that
defenses like claims of a missing cheque or
disputing the grounds for dishonor ie.
Account closed are questions of fact-these
issues should be addressed during the trial
and cannot be grounds for quashing the
proceedings u/s 482 crpc.(Para 1 to 14)

The application is dismissed. (E-6)

List of Cases cited:

## Text

894 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary,
may
in
exceptional
circumstances, direct the DNA test. Making
a bald and whimsical allegation upon the
chastity of his wife, is not only derogatory
but also an attempt to avoid to pay the
maintenance amount.

Therefore, the Court is declined to
grant any relief to the applicant- Dr. Ifraq @
Mohammad Ifraq Husain to quash the order
dated 20.01.2023 passed by IIIrd Additional
Sessions Judge, Kasganj in Criminal Appeal
No.19 of 2022 under section 125 Cr.P.C. or
grant any fresh direction to hold a fresh
DNA test of the applicant and respondent
nos.3 and 4 for the reasons mentioned
above. In addition to this, the prayer sought
in the Criminal Revision 1090 of 2023 to
set-aside the order dated 07.04.2022 passed
by learned Gram Nyayalaya, Patiali,
Kasganj in Case No.100 of 2019 Ms. Shazia
Parveen Vs. Dr. Ifraq @ Mohammad Ifraq
Husain and also the order dated 30.01.2023
passed by IIIrd Additional Sessions Judge,
Kasganj cannot be granted for the reasons
mentioned above. Both the petitions is
devoid of merit and accordingly dismissed
by instant composite judgment.

[33] It is further directed that
applicant would clear off all the outstanding
(if any) pursuant to above orders, within a
period of one month from the production of
certified copy of this judgment and the
applicant shall keep on paying the amount,
from the first fortnight of every month
starting from 01.07.2024.
----------
(2024) 5 ILRA 894
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.05.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/s 482 No. 17464 of 2024

Vijay Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Ashish Kumar Pandey, Nandini Mishra

Counsel for the Respondent:
G.A.

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section
482-Negotiable
Instruments
Act,
1881-Section
138challenge to entire proceedings-dishonour
of cheque- missing cheque-account closedthis is considered equivalent to insufficient
funds in the account, the drawer can be
held liable-a statutory presumption arises
u/s 139 of the NI Act that the cheque was
issued in discharge of a debt or liability-this
presumption must be rebutted by the
drawer during the trial-The court held that
defenses like claims of a missing cheque or
disputing the grounds for dishonor ie.
Account closed are questions of fact-these
issues should be addressed during the trial
and cannot be grounds for quashing the
proceedings u/s 482 crpc.(Para 1 to 14)

The application is dismissed. (E-6)

List of Cases cited:

1. Electronics Trade & Tech. Devp. Corp. Ltd.
Secunderabad Vs Indian Technologists & Engrs
(Electronics) Pvt. Ltd. & anr.(1996) 2 SCC 739

2. M/S Modi Cements Ltd. Vs Shri Kuchil Kumar
Nandi (1998) 3 SCC 249

3. NEPC Micon Ltd & ors. Vs Magma Leasing Ltd
(1999) 4 SCC 253

4. Laxmi Dyechem Vs St. of Guj. (2012) 13 SCC
375
5 All. Vijay Kumar Vs. State of U.P. & Anr.
895
(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard learned counsel for the
applicant and Sri Raj Bahadur Verma,
learned A.G.A. for the State.

2. The present 482 Cr.P.C.
application has been filed to quash the
summoning order dated 07.02.2024 as well
as entire proceeding of Complaint Case
No.6594 of 2023 (Rahul Vs. Vijay Kumar),
under Section 138 of N.I. Act, Police Station
Kotwali, District Ghaziabad, pending in the
court of learned Civil Judge (S.D.) F.T.C.,
Ghaziabad.

3. Opposite party no.2 had filed a
complaint against applicant under Section
138 N.I. Act with the allegation that
opposite party no.2 had given Rs.3,00,000/-
on the request of applicant in the month of
October, 2022, thereafter, just to repay that
amount
applicant
issued
a
Cheque
No.737727
dated
04.07.2023
of
Rs.3,00,000/- from his account maintaining
by him in Shivalika Mercantile Co-operative
Bank Ltd. Branch Bhatiya Road, Ghaziabad,
same was presented before the bank on
11.07.2023, but the same was returned by
the
bank
on
12.07.2023
with
the
endorsement 'account closed'. Thereafter,
opposite party no.2 sent registered notice on
09.08.2023 to the applicant demanding the
payment of cheque amount within 15 days,
but applicant has not paid any amount,
therefore, the complaint was filed and
statement under Section 200 Cr.P.C. was
also filed on affidavit and the learned
Magistrate on the basis of material on
record, summoned the applicant by order
dated 07.02.2024 after condoning the delay
in filing the complaint by order dated
08.11.2023 which is impugned in the present
case.
4. Contention of learned counsel for
the applicant is that the cheque in question
was missing cheque for which the applicant
has already filed a police report on
13.07.2022 and also filed complaint for
stopping the payment, but the opposite party
no.2 has misused the cheque and filed the
complaint, therefore, the cheque cannot be
said to be issued in discharge of any liability.
The impugned proceeding deserves to be
quahsed on this ground itself. Second
contention of learned counsel for the
applicant is that the cheque in question was
returned by the bank with the endorsement
'account closed', not for insufficiency of
fund, therefore, no liability under Section
138 of N.I. Act is attracted.

5. Per contra, learned A.G.A. for the
State has submitted that the defence raised
by learned counsel for the applicant are
disputed question of fact, same can be
decided during the trial and on this ground
proceeding cannot be quashed.

6. After considering the rival
submissions of learned counsel for the
parties and on perusal of record, this Court
is of the view, whether the cheque was
missing cheque, this question is disputed
question of fact, same can be decided during
trial. Even otherwise police complaint
regarding missing of cheque was not lodged
as per the procedure but a simple application
was submitted before S.H.O. of the
concerned police station.

7. So far as the second contention
of learned counsel for the applicant is
concerned, the cheque has been bounced and
returned by the bank with the endorsement
of 'account closed'.

8. Hon'ble the Apex Court in the
case of Electronics Trade And Technology
896 INDIAN LAW REPORTS ALLAHABAD SERIES
Development
Corporation,
Ltd.
Secunderabad Vs. Indian Technologists
and Engineers (Electronics) Pvt. Ltd. and
another, reported in 1996 (2) SCC 739,
observed that if cheque is returned by the
bank which was issued in discharge of any
liability with the endorsement, (1) 'refer to
the drawer of cheque' (2) 'instructions for
stop
payment'
and
(3)
'exceeds
arrangements'. Even then same will amount
to dishonour within the meaning of Section
138 N.I. Act., if the drawer of cheque fails to
pay the cheque amount within 15 days from
the receiving of demand notice. Paragraph
no.5 of judgment passed in the case of
Electronics
Trade
And
Technology
Development
Corporation,
Ltd.
Secunderabad (supra) is being quoted as
under:-

"5. It would thus be clear that when
a cheque is drawn by a person on an account
maintained by him with the banker for
payment of any amount of money to another
person out of the account for the discharge
of the debt in whole or in part or other
liability is returned by the bank with the
endorsement like (1) in this case, ?refer to
the drawer? (2) ?instructions for stoppage of
payment? and stamped (3) ?exceeds
arrangement?, it amounts to dishonour
within the meaning of Section 138 of the
Act. On issuance of the notice by the payee
or the holder in due course after dishonour,
to the drawer demanding payment within 15
days from the date of the receipt of such a
notice, if he does not pay the same, the
statutory
presumption
of
dishonest
intention, subject to any other liability,
stands satisfied."

9. Hon'ble Apex Court in the case
of M/S. Modi Cements Ltd. Vs. Shri Kuchil
Kumar Nandi reported in (1998) 3 SCC
249, observed that if the cheque is returned
by the bank with the endorsement 'stop of
payment', even then the liability under
Section 138 N.I. Act will be attracted
because of presumption of under Section
139 N.I. Act, when despite receiving the
demand notice drawer of cheque fails to pay
the cheque amount. Hon'ble the Apex Court
also observed in that case if the reason for
stop payment is excluded under Section 138
N.I. Act, then same would be contrary to the
object of Section 138 and 139 of N.I. Act
and that will make Section 138 N.I. Act a
dead letter. Paragraph nos.16, 18, 20 and 21
of the judgement passed in the case of M/S.
Modi Cements Ltd. (supra) are quoted as
under:-

"16. We see great force in the above
submission because once the cheque is
issued by the drawer a presumption under
Section 139 must follow and merely because
the drawer issues a notice to the drawee or
to the bank for stoppage of the payment it
will not preclude an action under Section
138 of the Act by the drawee or the holder of
a cheque in due course. The object of
Chapter XVII, which is intituled as "Of
Penalties in Case of Dishonour of Certain
Cheques for Insufficiency of Funds in the
Accounts" and contains Sections 138 to 142,
is to promote the efficacy of banking
operations and to ensure credibility in
transacting business through cheques. It is
for this reason we are of the considered view
that the observations of this Court in
Electronics
Trade
&
Technology
Development Corpn. Ltd. [(1996) 2 SCC
739 : 1996 SCC (Cri) 454] in para 6 to the
effect "Suppose after the cheque is issued to
the payee or to the holder in due course and
before it is presented for encashment, notice
is issued to him not to present the same for
encashment and yet the payee or holder in
due course presents the cheque to the bank
for payment and when it is returned on
5 All. Vijay Kumar Vs. State of U.P. & Anr.
897
instructions, Section 138 does not get
attracted", does not fit in with the object and
purpose for which the above chapter has
been brought on the statute-book.
18. The aforesaid propositions in
both these reported judgments, in our
considered view, with great respect are
contrary to the spirit and object of Sections
138 and 139 of the Act. If we are to accept
this proposition it will make Section 138 a
dead letter, for, by giving instructions to the
bank to stop payment immediately after
issuing a cheque against a debt or liability
the drawer can easily get rid of the penal
consequences notwithstanding the fact that
a deemed offence was committed. Further
the following observations in para 6 in
Electronics
Trade
&
Technology
Development Corpn. Ltd. [(1996) 2 SCC
739 : 1996 SCC (Cri) 454] (SCC p. 742)
"Section 138 intended to prevent
dishonesty on the part of the drawer of
negotiable instrument to draw a cheque
without sufficient funds in his account
maintained by him in a bank and induce the
payee or holder in due course to act upon it.
Section 138 draws presumption that one
commits the offence if he issues the cheque
dishonestly"
(emphasis supplied)
in our opinion, do not also lay down
the law correctly.

20. On a careful reading of Section
138 of the Act, we are unable to subscribe to
the view that Section 138 of the Act draws
presumption of dishonesty against drawer of
the cheque if he without sufficient funds to
his credit in his bank account to honour the
cheque issues the same and, therefore, this
amounts to an offence under Section 138 of
the Act. For the reasons stated hereinabove,
we are unable to share the views expressed
by this Court in the above two cases and we
respectfully differ with the same regarding
interpretation of Section 138 of the Act to the
limited extent as indicated above.
21. It is needless to emphasize that
the Court taking cognizance of the
complaint under Section 138 of the Act is
required to be satisfied as to whether a
prima facie case is made out under the said
provision. The drawer of the cheque
undoubtedly gets an opportunity under
Section 139 of the Act to rebut the
presumption at the trial. It is for this reason
we are of the considered opinion that the
complaints of the appellant could not have
been dismissed by the High Court at the
threshold."

10. Hon'ble Apex Court in the case
of NEPC Micon Limited and others Vs.
Magma Leasing Limited reported in 1999
(4) SCC 253, observed that if the cheque is
returned by bank with the endorsement
'account closed', it would amount to
returning the cheque unpaid because the
amount of money standing in the account of
drawer is insufficient to dishonour the
cheque as required under Section 138 of N.I.
Act, therefore, it would be sufficient for
issuing process under Section 138 N.I. Act.
Hon'ble Apex Court also observed that
Section 138 of N.I. Act is a penal statute,
therefore, it is the duty of Court to interpret
it consistent with the legislative intend and
purpose to promote efficacy of banking in
commercial or contractual transaction.
Paragraph nos.14 and 15 of the case of
NEPC Micon Limited and others (supra) are
quoted as under:-

"14. Lastly, we would refer to the
decision by a three-Judge Bench of this
Court in the case of Modi Cements Ltd. v.
Kuchil Kumar Nandi [(1998) 3 SCC 249]
dealing with a similar contention and
interpreting Section 138 of the Act. In that
case, the Court referred to the earlier
898 INDIAN LAW REPORTS ALLAHABAD SERIES
decisions in the case of Electronics Trade
and
Technology
Development
Corpn.
[Electronics
Trade
and
Technology
Development
Corpn.
Ltd.
v.
Indian
Technologists & Engineers (Electronics) (P)
Ltd., (1996) 2 SCC 739 : 1996 SCC (Cri)
454] and K.K. Sidharthan v. T.P. Praveena
Chandran [(1996) 6 SCC 369 : 1996 SCC
(Cri) 1340] and agreed that the legal
proposition enunciated in the aforesaid
decisions to the effect that if the cheque is
dishonoured because of "stop payment"
instruction to the bank, Section 138 would
get attracted. It also amounts to dishonour
of the cheque within the meaning of Section
138 when it is returned by the bank with the
endorsement like (i) in this case, "referred to
the drawer" (ii) "instructions for stoppage of
payment" and stamped (iii) "exceeds
arrangement". The Court observed that the
object of bringing Section 138 on statute
appears to be to inculcate faith in the
efficacy
of
banking
operations
and
credibility in transaction in business on
negotiable instruments and to promote the
efficacy of banking operations and to ensure
credibility in transacting business through
cheques. Thereafter, the Court disagreed
with other views expressed in the aforesaid
two cases and held that once the cheque is
issued by the drawer a presumption under
Section 139 must follow and merely because
the drawer issues a notice to the drawee or
to the bank for stoppage of the payment it
will not preclude an action under Section
138 of the Act by the drawee or the holder of
a cheque in due course. The Court further
held that it will make Section 138 a dead
letter if the contention that by giving
instruction to the bank to stop payment
immediately after issuing a cheque against
the debt or liability, the drawer can easily
get
rid
of
the
penal
consequences
notwithstanding the fact that deemed
offence was committed. Finally, the Court
held that Section 138 of the Act gets
attracted
only
when
the
cheque
is
dishonoured.
15. In view of the aforesaid
discussion we are of the opinion that even
though Section 138 is a penal statute, it is
the duty of the court to interpret it consistent
with the legislative intent and purpose so as
to suppress the mischief and advance the
remedy. As stated above, Section 138 of the
Act has created a contractual breach as an
offence and the legislative purpose is to
promote efficacy of banking and of ensuring
that
in
commercial
or
contractual
transactions cheques are not dishonoured
and credibility in transacting business
through cheques is maintained. The above
interpretation would be in accordance with
the principle of interpretation quoted above
"brush away the cobweb varnish, and shew
the transactions in their true light" (Wilmot,
C.J.) or (by Maxwell) "to carry out
effectively the breach of the statute, it must
be so construed as to defeat all attempts to
do, or avoid doing, in an indirect or
circuitous manner that which it has
prohibited". Hence, when the cheque is
returned by a bank with an endorsement
"account closed", it would amount to
returning the cheque unpaid because "the
amount of money standing to the credit of
that account is insufficient to honour the
cheque" as envisaged in Section 138 of the
Act."

11. Hon'ble the Apex Court in the
case of Laxmi Dyechem Vs. State of
Gujarat reported in (2012) 13 SCC 375,
observed that even if a cheque is returned by
the bank with the endorsement 'signature
differ' even that is sufficient to issue process
for Section 138 N.I. Act because after
dishonouring the cheque, drawer gets
statutory notice giving him opportunity to
arrange the payment of amount covered by
5 All. Vijay Kumar Vs. State of U.P. & Anr.
899
cheque and it is only when the drawer
despite getting opportunity on receiving said
notice failed to make the payment within 15
days, proceeding under Section 138 N.I. Act
is initiated.

Paragraph no.16.2 and 17 of the
Laxmi Dyechem (supra) is being quoted as
under:-
"16.2.
There
may
indeed
be
situations where a mismatch between the
signatories on the cheque drawn by the
drawer and the specimen available with the
bank may result in dishonour of the cheque
even when the drawer never intended to
invite such a dishonour. We are also
conscious of the fact that an authorised
signatory may in the ordinary course of
business be replaced by a new signatory
ending the earlier mandate to the bank.
Dishonour on account of such changes that
may occur in the course of ordinary business
of a company, partnership or an individual
may not constitute an offence by itself
because such a dishonour in order to qualify
for prosecution under Section 138 shall have
to be preceded by a statutory notice where
the drawer is called upon and has the
opportunity to arrange the payment of the
amount covered by the cheque. It is only
when the drawer despite receipt of such a
notice and despite the opportunity to make
the payment within the time stipulated under
the statute does not pay the amount that the
dishonour would be considered a dishonour
constituting an offence, hence punishable.
Even in such cases, the question whether or
not there was a lawfully recoverable debt or
liability for discharge whereof the cheque
was issued would be a matter that the trial
court will examine having regard to the
evidence adduced before it and keeping in
view the statutory presumption that unless
rebutted the cheque is presumed to have
been issued for a valid consideration.
17. In the case at hand, the High
Court relied upon a decision of this Court in
Vinod Tanna case in support of its view. We
have carefully gone through the said
decision which relies upon the decision of
this
Court
in
Electronics
Trade
&
Technology Development Corpn. Ltd. The
view expressed by this Court in Electronics
Trade & Technology Development Corpn.
Ltd. that a dishonour of the cheque by the
drawer after issue of a notice to the holder
asking him not to present a cheque would
not attract Section 138 has been specifically
overruled in Modi Cements Ltd. case10. The
net effect is that dishonour on the ground
that the payment has been stopped,
regardless whether such stoppage is with or
without notice to the drawer, and regardless
whether the stoppage of payment is on the
ground that the amount lying in the account
was not sufficient to meet the requirement of
the cheque, would attract the provisions of
Section 138."

12. From the above legal position,
it is clear that if the cheque is dishonoured
and returned with following endorsement,
then it will be sufficient for prima facie case
for issuing process under Section 138 N.I.
Act:-

(i) case referred to drawer
(ii) instruction for stoppage of
payment
(iii) exceeds arrangement
(iv) insufficient fund
(v) signature differed or mismatch
(vi) account closed

13. Though, despite the above mentioned
endorsement by the bank for returning the
cheque summoning the drawer of cheque
under Section 138 N.I. Act is proper but
presumption under Section 139 N.I. Act or
disputing the above endorsement on the part
900 INDIAN LAW REPORTS ALLAHABAD SERIES
of the bank can always be raised during trial
but same cannot be ground for quashing the
complaint proceeding at initial stage.

14. In the present case also, the
cheque in question was returned by the bank
with the endorsement 'account closed',
therefore, in view of above legal position,
there is no illegality in summoning the
application under Section 138 N.I. Act.
Therefore, the present application fails and
accordingly dismissed.
----------
(2024) 5 ILRA 900
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2024

BEFORE

THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Capital Case No. 17 of 2021

Prem Singh Prajapati ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Smt. Aradhana Singh, Sri Rajiv Lochan Shukla

Counsel for the Respondents:
Sri Ananad Vikram Singh, G.A., Sri Vibhuti
Narayan Singh

A.
Capital
case-Criminal
Procedure
Code,1973- Sections 374(2) & 366- Indian
Penal Code, 1860-Sections 302, 201, 363 &
376AB - POCSO Act,2012 - section 5/6 -
appellant challenged the conviction-a two
year old girl was sexually assaulted by the
appellant and later found dead in the pond-
circumstantial evidence i.e. last seen, extra
judicial confession and DNA report could
not be proved by the prosecution-the
forensic report shows that the biological
evidence did not conclusively link the
appellant to the crime, and the medical
report indicates that the victim died of
drowning-the
appellant
argues
about
insufficient evidence, inconsistencies in
witness testimonies, some of whom turned
hostile-Held, in view of the detailed finding
recorded in the above case the appellant is
entitled to get benefit of doubt.(Para 1 to
97)

B. Falsus in Uno, Falsus in Omnibus-The
legal doctrine suggests that if a witness is
found to have lied on one point, their entire
testimony may be disregarded. In this
case, witnesses like Akash Sharma and
others provided inconsistent statements,
raising questions about their reliability.
The defense used this doctrine to challenge
the
credibility
of
key
prosecution
witnesses.

C. Proof beyond reasonable Doubt-In
criminal
cases,
especially
capital
punishment cases, the standard of proof is
"beyond
reasonable
doubt".
Any
reasonable doubt in the prosecution case
must result in acquittal. The defense
emphasized
that
the
lack
of
direct
evidence, the contradictions in witnesses
statements, the absence of conclusive
forensic proof, and the possibility of the
child
accidentally
drowning
raise
reasonable doubts about the appellant's
involvement.

D. Last seen Evidence-the last seen theory
implies that the person last seen with the
victim is presumed to be involved in the
crime
unless
they
can
provide
an
explanation. The theory must be used with
caution. In this case, witness, Akash
Sharma claimed to have seen the accused
with the victim near the pond. The defense
questioned
the
credibility
of
this
testimony, especially since the witness did
not immediately report this to anyone and
the police did not record this statement
promptly.

E. Extra-Judicial confession-extra judicial
confessions, if reliable, can be used as
evidence. However, they need to be
corroborated
by
other
facts
and
circumstances. In this case, two witnesses,