# Virendra Kumar Sharma v. State of U.P. & Anr

- **Citation:** (2022) 3 ILRA 315
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-08
- **Case number:** Application U/S 482 No.14051 of 2008
- **Bench:** Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-kumar-sharma-v-state-of-u-p-anr-47584
- **Pages:** 4

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal
Code,
1860
-
The
Negotiable
instruments Act, 1981- Section 138 -
Dishonour of cheque , Section 145 -
Evidence on affidavit , Section 145(1) -
evidence of complainant may be given by
him on affidavit,and for summoning of
accused under Section 138 Negotiable
Instruments Act, recording of statements
under Sections 200 and 202 Cr.P.C., is not
required. (Para - 10)

Complaint under Section 138 Negotiable
Instruments Act - ground of challenge -
without recording statements of opposite
party No. 2 and witnesses - under sections
200 and 202 Cr.P.C. - summoning order
passed by Chief Judicial Magistrate - entire
proceeding of impugned complaint case -
pending against applicant - bad in the eye
of law - hence present application. (Para -
3,4 )

HELD:-Even on the basis of affidavit filed on
behalf of the complainant, an accused can
be summoned under Section 138 Negotiable
Instruments Act and there is no need to
record statements under Sections 200 and
202 Cr.P.C. . No illegality committed by
learned trial court while passing summoning
order against the applicant. (Para -13,14 )

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

In Re.: Expeditious Trial of Cases Under Section
138 N.I. Act 1881 , AIR 2021 Supreme Court
1957

## Text

3 All. Virendra Kumar Sharma Vs. State of U.P. & Anr.
315
the age certificate filed by the applicant
certified by the C.M.O. Budaun which
states that her age on 4.10.2008 was 22
years. Thus, her age on the date of
occurrence cannot be less than twenty
years. Hence, she is major and has attained
the age of consent. The impugned charge
sheet is clearly a misuse of process of
Court and the prosecution lodged therein
cannot be allowed to be continued.

8. The subject matter of the present
case falls under category ''(7)' of the State
of Haryana and Ors. v. Bhajan Lal and
Ors. 1992 Supp (1) SCC 335.

9. In view of the foregoing
discussions, this Court is of the view that
permitting the criminal proceedings, which
have been maliciously instituted with
ulterior motive against the applicant and it
shall be nothing but the abuse of process of
Court needs to be interfered by this Court.
This case falls within the four walls of
Section 482 Cr.P.C.

10. The proceedings of Criminal Case
No. 605 of 2007 pending in the Court of
C.J.M. Badaun, State vs. Pappu, in Case
Crime No. 9 of 2007 u/s 363, 366 IPC, P.S.
Kunwargaon, District-Badaun are quashed.
The application is, accordingly, allowed.
----------
(2022)03ILR A315
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.12.2021

BEFORE

THE HON'BLE SAMEER JAIN, J.

Application U/S 482 No.14051 of 2008

Virendra Kumar Sharma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Manoj Kumar Rai, Sri K.C. Tripathi

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

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal
Code,
1860
-
The
Negotiable
instruments Act, 1981- Section 138 -
Dishonour of cheque , Section 145 -
Evidence on affidavit , Section 145(1) -
evidence of complainant may be given by
him on affidavit,and for summoning of
accused under Section 138 Negotiable
Instruments Act, recording of statements
under Sections 200 and 202 Cr.P.C., is not
required. (Para - 10)

Complaint under Section 138 Negotiable
Instruments Act - ground of challenge -
without recording statements of opposite
party No. 2 and witnesses - under sections
200 and 202 Cr.P.C. - summoning order
passed by Chief Judicial Magistrate - entire
proceeding of impugned complaint case -
pending against applicant - bad in the eye
of law - hence present application. (Para -
3,4 )

HELD:-Even on the basis of affidavit filed on
behalf of the complainant, an accused can
be summoned under Section 138 Negotiable
Instruments Act and there is no need to
record statements under Sections 200 and
202 Cr.P.C. . No illegality committed by
learned trial court while passing summoning
order against the applicant. (Para -13,14 )

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

In Re.: Expeditious Trial of Cases Under Section
138 N.I. Act 1881 , AIR 2021 Supreme Court
1957

(Delivered by Hon'ble Sameer Jain, J.)
316 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Case called out in the revised list.
Despite service of notice, none appeared on
behalf of the opposite party No. 2.

2. Heard Sri Manoj Kumar Rai,
learned counsel for the applicant, learned
AGA for the State-respondent and perused
the record.

3. The present application u/s 482
Cr.P.C. has been filed by the applicant to
quash the proceedings of complaint case
No. 1690 of 2007, (Surendra Singh Vs.
Virendra Kumar Sharma), under Section
138 Negotiable Instruments Act, P.S.
Bhelpur, District Varanasi pending before
IInd Chief Judicial Magistrate, Varanasi.

4. Learned counsel for the applicant,
at the very outset, contended that he is
challenging the proceeding pending against
the applicant only on the sole ground that
without
recording
the
statements
of
opposite party No. 2 and witnesses, under
sections 200 and 202 Cr.P.C., summoning
order dated 2.2.2008 was passed by the
learned
Additional
Chief
Judicial
Magistrate, Court No. 2, Varanasi against
the applicant, therefore, entire proceeding
of the impugned complaint case, pending
against the applicant, is bad in the eye of
law.

5. Except this, no other argument was
advanced on behalf of the applicant.

6. Per contra, learned AGA contended
that for passing the summoning order under
Section 138 Negotiable Instruments Act,
there is no requirement of recording of the
statements under Sections 200 and 202
Cr.P.C. and if as per the trial court,
complaint discloses prima facie offence
under Section 138 Negotiable Instruments
Act
then
applicant/accused
can
be
summoned and, therefore, there is no
illegality in the summoning order and the
present applicant u/s 482 Cr.P.C. is liable
to be rejected .

7. The present matter relates to
Negotiable
Instruments
Act
and
on
2.2.2008, applicant was summoned under
Section 138 Negotiable Instruments Act.

8. Perusal of the summoning order
dated 2.2.2008 shows that cheque issued by
the applicant in favour of the Firm of
opposite party No. 2 was dishonoured and
thereafter, notices on behalf of opposite
party No. 2 were given to the applicant for
payment of the cheque amount but inspite
of that, no payment was made then
ultimately opposite party No. 2 filed
complaint of the present case, under
Section 138 Negotiable Instruments Act
against the applicant. Therefore, from the
perusal of the complaint, a prima facie case
under Section 138 Negotiable Instruments
Act is made out against the applicant.

9. Further, Section 145 of the
Negotiable Instruments Act, 1881, which
was introduced by the Parliament by Act
No. 55 of 2002 (w.e.f. 6.2.2003), states as
follows:-

145. Evidence on affidavit.--

(1)
Notwithstanding
anything
contained
in
the
Code
of
Criminal
Procedure, 1973 (2 of 1974), the evidence
of the complainant may be given by him on
affidavit and may, subject to all just
exceptions be read in evidence in any
enquiry, trial or other proceeding under the
said Code.

(2)The Court may, if it thinks fit,
and shall, on the application of the
3 All. Virendra Kumar Sharma Vs. State of U.P. & Anr.
317
prosecution or the accused, summon and
examine any person giving evidence on
affidavit as to the facts contained therein.

10. Thus, as per Section 145(1) of the
Negotiable Instruments Act, the evidence
of complainant may be given by him on
affidavit, and for summoning of accused
under Section 138 Negotiable Instruments
Act, recording of statements under Sections
200 and 202 Cr.P.C., is not required.

11. In the present case, from the
perusal of the summoning order dated
2.2.2008, it is apparent that while passing
this order, learned Magistrate perused the
complaint as well as affidavit filed in
support of the complaint filed by opposite
party No. 2 and other documents including
cheque etc. and, therefore, in view of the
Provisions of Section 145 (i) Negotiable
Instruments Act, it cannot be said that
learned trial court committed any error
while summoning the applicant as there
was no need to record the statements either
under Sections 200 Cr.P.C. or 202 Cr.P.C.

12. Recently, Constitution Bench of
Hon'ble
Supreme
Court
In
Re.:
Expeditious Trial of Cases Under Section
138 N.I. Act 1881 reported in [AIR 2021
Supreme Court 1957] in paragraph-12
observed as under:-

"12. Another point that has been
brought to our notice relates to the
interpretation of Section 202 (2) which
stipulates that the Magistrate shall take
evidence of the witness on oath in an
inquiry conducted under Section 202 (1)
for the purpose of issuance of process.
Section 145 of the Act provides that the
evidence of the complainant may be
given by him on affidavit, which shall be
read in evidence in any inquiry, trial or
other
proceeding,
notwithstanding
anything contained in the Code. Section
145 (2) of the Act enables the court to
summon and examine any person giving
evidence on affidavit as to the facts
contained therein, on an application of
the prosecution or the accused. It is
contended by the learned Amici Curiae
that though there is no specific provision
permitting the examination of witnesses
on affidavit, Section 145 permits the
complainant to be examined by way of an
affidavit for the purpose of inquiry under
Section 202. He suggested that Section
202 (2) should be read along with Section
145 and in respect of complaints under
Section 138, the examination of witnesses
also should be permitted on affidavit.
Only in exceptional cases, the Magistrate
may examine the witnesses personally.
Section 145 of the Act is an exception to
Section 202 in respect of examination of
the complainant by way of an affidavit.
There is no specific provision in relation
to examination of the witnesses also on
affidavit in Section 145. It becomes clear
that Section 145 had been inserted in the
Act, with effect from the year 2003, with
the laudable object of speeding up trials
in complaints filed under Section 138. If
the evidence of the complainant may be
given by him on affidavit, there is no
reason for insisting on the evidence of the
witnesses to be taken on oath. On a
holistic reading of Section 145 along with
Section 202, we hold that Section 202 (2)
of the Code is inapplicable to complaints
under
Section
138
in
respect
of
examination of witnesses on oath. The
evidence of witnesses on behalf of the
complainant
shall
be
permitted
on
affidavit. If the Magistrate holds an
inquiry himself, it is not compulsory that
he should examine witnesses. In suitable
cases,
the
Magistrate
can
examine
318 INDIAN LAW REPORTS ALLAHABAD SERIES
documents for satisfaction as to the
sufficiency of grounds for proceeding
under Section 202."

13. Thus, it is clear from the above
judgement of Hon'ble Supreme Court that
even on the basis of affidavit filed on
behalf of the complainant, an accused can
be
summoned
under
Section
138
Negotiable Instruments Act and there is no
need to record statements under Sections
200 and 202 Cr.P.C.

14. Having considered the aforesaid
facts and circumstances of the case, it is
apparent
that
there
is
no
illegality
committed by the learned trial court while
passing
the
summoning
order
dated
2.2.2008 against the applicant. Therefore,
the present application u/s 482 Cr.P.C., is
devoid of merit and is, accordingly,
dismissed.

15. Interim order, if any, stands
vacated.
----------
(2022)03ILR A318
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2022

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Application U/S 482 No.16386 of 2021

Smt. Shila Devi ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Kumar Ankit Srivastava, Sri C.K. Parekh
(Senior Adv.)

Counsel for the Opposite Parties:
A.G.A., Sri Anil Pathak, Sri Sageer Ahmad
(Senior Adv.)

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code, 1860 - Sections 419, 420,
465, 466, 467, 468 and 472 - If there are
two views emerging then the court has to
examine discharge application filed under
Section 227 Cr.P.C. by discussing the
evidences on record and then forming the
opinion to pass order on the application.
(Para - 15)

Applicants father gifted Benami Property - sold
by Bhabhi of complainant fraudulently - police
collected material and charge sheet filed against
applicant - applicant challenged charge sheet -
applicant
permitted
to
move
discharge
application through counsel - Judicial Magistrate
dismissed discharge application - revision -
dismissed - applicant being aggrieved - filed
application U/s. 482 before this Court .(Para - 6)

HELD:-Both courts below have not discussed
the evidences and material available before
them and reasons have not been recorded.
Order passed by courts below set-aside. Matter
remitted back to Judicial Magistrate. (Para - 15)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-

1. Satish Mehra Vs St. of N.C.T. of Delhi & anr. ,
2013 Vol. I ACR 591 (S.C.)

2. St. Vs Daraswmami & ors., AIR 2019 S.C.
1518

3. St. of T.N. Vs N. Suresh Rajan , 2104 (84) AC
656.

4. Yogesh @ Sachendra Jagdish Joshi Vs St. of
Mah., 2008 Vol. X SC 394

5. Vikram Jauhar Vs St. of U.P. , AIR 2019 S.C.
2109

6. St. of Orrisa Vs Devendra Nath Padhi, 2003
Vol. II SCC 711