Allahabad High Court
Sudhir Rao vs State Of U.P. And Another on 6 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:72652 Court No. - 73 Case :- APPLICATION U/S 482 No. - 42523 of 2024 Applicant :- Sudhir Rao Opposite Party :- State of U.P. and Another Counsel for Applicant :- Akhil Kumar Singh,Deepesh Kumar Ojha Counsel for Opposite Party :- G.A.,Sanjai Kumar Singh Hon'ble Vikas Budhwar,J.
1. Heard Shri Deepesh Kumar Ojha, learned counsel for the applicant, Shri S.P. Singh, learned State Law Officer and Sri Sanjay Singh, learned counsel for opposite party no. 2.
2. This application under Section 482 Cr.PC. has been filed by the applicant to quash the the impugned order dated 03.10.2024 passed by Additional Session Judge, F.T.C IInd, Place Padrauna, District Kushinagar in Criminal Revision No. 64 of 2024 (Sudhir Rao Vs State of U.P and another) as well as to quash the summoning order dated 06.01.2023 passed by Additional Chief Judicial Magistrate, Kasia, District Kushinagar in Complaint Case No. 6075 of 2022 (Lallan Chaudhary Vs Sudhir Rao), which is pending before ACJM, Kasia, District Kushinagar.
3. This Court while granting interim order to the applicant had issued notices upon the opposite party no. 2.
4. The counsel for the rival parties have made a joint statement that they do not propose to file any further affidavits, thus, with the consent of the parties, the application is being decided at the fresh stage.
5. The case of the applicant is that a complaint a complaint was lodged by the opposite party no. 2 on 11.10.2022 against the applicant with an allegation that with respect to contesting an election, the applicant had taken an amount of Rs. 25 lakh as a financial assistance and had drawn a cheque for an amount of Rs. 25 lakh dated 12.07.2022 bearing No. 000038 which on presentation in the Bank was dishonoured on 15.07.2022 and on the assurance of the applicant, the opposite party no.2 again represented the said cheque on 18.08.2022 which stood dishonoured on 19.08.202 followed by a statutory demand notice dated 24.08.2022 and thereafter a complaint was lodged on 11.10.2022. The trial court by virtue of the order dated 06.01.2023 summoned the applicant under Section 138 of the N.I. Act against which the applicant preferred a revision before the Court of Additional Sessions Judge/ FTC-II, Kasia, Kushinagar being in Criminal Revision No. 64 of 2024 which was rejected on 03.10.2024.
6. Questioning the both the orders, the applicant has been filed the present application.
7. Learned counsel for the applicant has submitted that the applicant could not have been summoned for the simple reason that as per the para-7 of the complaint, the statutory demand notice was issued on 24.08.2022 through registered post but there is no date of service of notice and further the complaint was filed on 11.10.2022 much beyond the permissible period. Accordingly to the learned counsel for the applicant on the receipt of the statutory notice the payment is to be made by the accused within 15 days and the cause of action would be thereafter 30 days for filing of the complaint. Here, in the present case assuming that the statutory notice on 24.08.2022 and there is no date of service of notice then as per the own case of the opposite party no. 2/ complainant, 15 days period was sufficient for making the payment and the cause of action would arise after 30 days but the complaint has been lodged after 45 days beyond the statutory period, thus, according to him, the summoning order be set aside.
8. Shri Sanjay Kumar Srivastava who appears for the opposite party no. 2 has though opposed the application while arguing that presumption under Section 138 of the N.I. Act is already there but according to him, the issue which is being sought to be raised by the applicant has neither been noticed in the summoning order nor in the revision preferred by the applicant. He as per the specific instructions from his client submits that the summoning order as well as revisional order be set aside and the matter be remitted back to Court below to pass fresh orders.
9. Learned AGA has no objection to the same, according to him, the matter be remitted back as suggested by counsel for the opposite party no. 2 as per the instructions from the client.
10. Considering the submissions so raised by the rival parties as well as a specific statement being made by counsel for the parties as per instructions so received by him from his client that the summoning order as well as the order passed by the revisional court be set aside. The orders cannot be sustained.
11. In view of the fact that there has been no recital or consideration of the said aspect, the order dated 06.01.2023 passed by the Additional Chief Judicial Magistrate, Kasia, Kushinagar in Complaint Case No. 6075 of 2022 (Lallan Chaudhary v. Sudhir Rao) as well as the order dated 03.10.2024 passed by Additional Sessions Judge/ FTC-II at Padrauna, Kushinagar in Criminal Revision No.64 of 2024 (Sudhir Rao v. State of U.P. and another) are set aside.
12. The matter stands remitted back to pass fresh order strictly in accordance with law.
13. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 16.05.2025 and the court below shall proceed to decide the said proceeding with most expedition.
14. The court below shall endeavour to decide the said issue strictly in accordance with law as per the mandate contained under sub-section (3) of Section 143 of the Act.
15. Accordingly, the application stands disposed of.
Order Date :- 6.5.2025 A. Prajapati