Allahabad High Court
Har Narayan Gupta vs State Of U.P. And Another on 18 August, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:144310 Court No. - 75 Case :- APPLICATION U/S 482 No. - 24031 of 2024 (Leading Application) Applicant :- Har Narayan Gupta Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sarvesh Counsel for Opposite Party :- G.A.,Rajesh Kumar Sachan,Sandhya Sachan with Case :- APPLICATION U/S 482 No. - 24153 of 2024 (Connected Application) Applicant :- Har Narayan Gupta Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sarvesh Counsel for Opposite Party :- G.A.,Rajesh Kumar Sachan,Sandhya Sachan Hon'ble Vikas Budhwar,J.
1. Heard Sri Sarvesh, learned counsel for applicant in leading and connected applications, Sri S.K. Singh, learned AGA for the State and Rajesh Kumar Sachan, learned counsel for opposite party No.2.
2. A joint statement made by the learned counsel for the parties that they do not propose to file any further affidavit and both the applications be decided on the basis of documents available on record. With the consent of the parties both the applications is being decided at the fresh stage.
3. The leading application under Section 482 Cr.P.C. has been filed by the applicant to quash the summoning order dated 18.3.2024 as well as entire proceedings of Complaint Case No.38295 of 2024, under under Sections 138, 141 N.I. Act, P.S. Pheelkhana, District Kanpur Nagar, pending in the court of Additional Civil Judge (SD), Court No.4 Kanpur Nagar.
4. The connected application under Section 482 Cr.P.C. has been filed by the applicant to quash the summoning order dated 19.1.2024 as well as entire proceedings of Complaint Case No.152486 of 2023, under under Sections 138, 141 N.I. Act, P.S. Harvansh Mohal, District Kanpur Nagar, pending in the court of MM-09, Kanpur Nagar.
5. The facts of leading application are that of complaint came to be preferred under Section 138 of N.I. Act on 04.03.2024 by the opposite party No.2 with an allegation that with respect to discharge of a liability the applicant herein had drawn a cheque bearing No.538803 dated 30.1.2024 of rupees five lakhs in favour of opposite party no.2 which on presentation in the bank came to be dishonoured on 31.1.2024 with the remark refer to drawer. Thereafter a statutory demand notice came to be issued on 5.2.2024 which is stated to have been served upon the applicant on 6.2.2024 a reply to the same is stated to have been summoned by the applicant on 18.2.2024 followed by the complaint under Section 138 of N.I. Act on 4.3.2024 and the applicant came to be summoned under Section 138 of the N.I. Act in Complaint Case No.38295 of 2024 on 18.3.2024.
6. As regards the connected application is concerned the same relates to filing of a complaint under Section 138 of N.I. Act on 26.10.2023 by the opposite party no.2 against the applicant with an allegation that with respect to discharge a liability the applicant herein had drawn a cheque bearing No.538804 dated 24.8.2023 of an amount of rupees five lakhs which on presentation in the bank on 25.5.2023 was dishonoured on 28.8.2023 with a remark that payment stopped followed by a statutory demand notice dated 12.9.2023 and the complaint under Section 138 of the N.I. Act on 26.10.2023 and the applicant came to be summoned on 19.1.2024 in Complaint Case No.152486 of 2023.
7. This Court while entertaining the present application had required the learned AGA to seek instructions and the following orders have been passed on 18.10.2024 and 4.10.2024 which are as under respectively:-
(Leading Application) "1. Heard Sri Sarvesh, learned counsel for the applicant, Pankaj Saxena, learned A.G.A for the State and perused the record.
2. The instant application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 18.03.2024 as well as entire proceedings of Complaint Case No.38295 of 2024, under Sections- 138 of N.I. Act, Police Station - Pheelkhana, District - Kanpur Nagar, pending in the court of Additional Civil Judge (SD), Court No.4, Kanpur Nagar.
3. Contention of learned counsel for the applicant is that impugned proceeding itself is based on the cheque for which applicant already lodged an NCR on 29.12.2022 for missing the same and from the complaint itself it is clear that a cheque dated 30.01.2024 was handed over to the complainant by the applicant on 15.12.2023. Therefore, it is submitted that the cheque for which missing report was already lodged in the year 2022 cannot be said to be given to the applicant in the year 2023 itself, however, there is nothing on record that the applicant has given any application to the bank to stop the payment for missing cheque for which though he has lodged an NCR on 29.12.2022.
4. Learned counsel for the applicant is directed to file application given to the bank regarding the stopping of payment of the missing cheque No.538803.
5. However, considering the fact that N.B.W. has issued against the applicant and he prima-facie made out the case, for consideration of this Court.
6. Put up this case as fresh on 11.11.2024 and connect along with Application U/S 482 No.24153 of 2024 (Har Narayan Gupta vs. State of U.P. and another).
7. Till the next date of listing, no coercive action shall be taken against the applicant in the aforementioned case."
(Connected Application) "1. Heard Sri Sarvesh, learned counsel for the applicant and Sri Ramesh Kumar, learned A.G.A. for the State.
2. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the summoning order dated 19.1.2024 as well as entire proceedings of Complaint Case No. 152486 of 2023 under Section 138 of the Negotiable Instruments Act, 1881, Police Station-Harvansh Mohal, District-Kanpur Nagar.
3. Learned counsel for the applicant submits that vide NCR dated 29.12.2022 the applicant has reported loss of four cheques specifying the numbers of the cheques in the NCR. Out of the said four cheques, one cheque no. 538804 has been misutilized by the opposite party no. 2 and the instant complaint case has been filed. Learned counsel for the applicant further submits that as per the averments made in the complaint lodged by the opposite party no.2 the cheque in question were handed over in the month of June, 2023 however, the loss report was lodged by the applicant way back on 29.12.2022. Therefore, there is no possibility of giving the said cheque to the opposite party no. 2.
4. In view thereof, the matter requires consideration.
5. Issue notice to the opposite party no. 2.
6. Learned A.G.A. represents the opposite party no.1.
7. Both the opposite parties are granted four weeks time to file counter affidavit. Rejoinder affidavit, if any, be filed within two weeks thereafter.
8. Put up this matter again on 13.12.2024 in the additional cause list before the appropriate Bench.
9. Till the next date of listing, no coercive steps shall be taken against the applicant in pursuance of Complaint Case No. 152486 of 2023 under Section 138 of the Negotiable Instruments Act, 1881, Police Station-Harvansh Mohal, District-Kanpur Nagar."
8. Learned counsel for applicant has submitted that the summoning order in both the applications cannot be sustained for the simple reason that the cheques which alleged to have been dishonoured were lost/stolen thus on 29.12.2022 a complaint with respect to lost article information report was registered in e-Thana. Submission is that the said cheques came to be misutlised and intentionally got it dishonoured. Argument is that there is no legal enforcement debt or a liability so as to attract the provisions of Section 138 of N.I. Act particularly when the bona fides are already tilting in favour of the applicant particularly when the applicant had lodged a missing report of the said cheques as he had an apprehension that the same would be prone to misutilisation and rather they were misutilised. The submission is also to the extent that in both the complaints the liability of rupees five lakhs has been inflicted upon the applicant, however, there is no mode manner or the date on which the said amounts stood transfer or tendered to the opposite party no.2 and even in fact as per the provisions contained under Section 269SS of the Income Tax Act., No amount can be tendered as a loan or even otherwise in cash if its exceeds Rs.20,000/-. He further, submits that even pursuant to the order of the Court the learned AGA was required to determine the fact as to whether the lost article information report was genuine or not and it is now the stand of the learned AGA that it is a genuine document thus the bona fides of the applicant cannot be doubted in any manner whatsoever.
9. Sri Rajesh Kumar Sachan, who appears for the opposite party no.2/complainant in both the applications has sought to argue that whatever might be once the cheques stood drawn and it was dishonoured then the presumption under Section 139 of N.I. Act would be there and further there is no iota of evidence even worth consideration that any communication was made to the bank regarding stop payment in that regard. He also submits that these are matters of defences consideration whereof would be required when the trial commences. He seeks to relay upon the decision of Hon'ble Apex Court in Rathish Babu Unnikrishnan Vs. State (2022) 4 SCR 989, M/S. Topline Buildtec Pvt Ltd. & Ors. Vs. State & Anr. High Court of Delhi at New Delhi in CRL. MC No.3386 of 2019 decided on 5.9.2023, Oriental Bank of Commerce Vs. Prabodh Kumar Tiwari in Crl. Appeal No.1260 of 2022 decided on 16.8.2022 and K. Ramesh Vs. Kothandaraman in SLP (Crl.) No.3377 of 2019 decided on 9.2.2024.
10. Learned AGA has supported the argument of the learned counsel for the opposite party No.2.
11. I have heard these submission so made across the bar and perused the record.
12. Apparently, the complaint in the leading and the connected applications alleges that cheques were drawn by the applicant for discharge of liability which came to be dishonoured followed by statutory demand notice and a complaint. The sole question which would arise for consideration in the present proceedings would be the extent of judicial intervention at this stage. Importantly, the sheet anchor of the argument of learned counsel for applicant is that the cheques were stolen/lost an information was registered in the lost article information report which stood registered in the e-Thana on 29.12.2022. Submission is that the cheques stood dishonoured subsequent to the date of the lodging of the said report thus no legal debt or liability stands fasten so as to invoke the provision of Section 138 of N.I. Act. Plainly and simply the argument so sought to be raised by the learned counsel for applicant though looks attractive at the first blush but it is not liable to be accepted at this stage when the summoning order is subject matter of challenge particularly when these are matters of defences consideration thereof would be required only when the trial commences and not at stage of summoning. Whether the cheques were lost or stolen or misutilised by the opposite party No.2 is a question which needs evidence which can only be done when the trial commences it would not be appropriate for this Court at the stage of summoning to delve into the factual issues and to encroach upon the arena of trial as for that purpose the inherent jurisdiction is not made. In other words the applicant may be right by contending that the cheques were misutilised but a conclusive finding is to be recorded in a trial and the same may have its own effect or impact when the decision is to be taken whether it is a case of acquittal or conviction. Nonetheless in Rathish Babu Unnikrishnan (Supra) the Hon'ble Apex Court had the occasion to consider the extent of judicial intervention of Section 482 Cr.P.C. and in para 17 the following was observed as under:-
"The consequences of scuttling the criminal process at a pre-trial stage can be granve and irreparable. Quashing proceedings at preliminary stages will result in finality witout the parties having had an opportunity to adduce evidence and the consequence then is that the proper forum i.e., the trial Court is ousted from weighing the material evidence. If this is allowed, the accused may be given an un-merited advantage in the criminal process. Also because of the legal presumption, the cheque and the signature are not disputed by the appellant, the balance of convenience at this stage is in favour of the complainant/prosecution, as the accused will have due opportunity to adduce defence evidence during the trial, to rebut the presumption."
13. In so far as arguments sought to be raised learned counsel for applicant that any cash payment beyond Rs.20000/- cannot be said to be a legal transaction is concerned and it would be hit by the provision of Section 269SS of the Income Tax Act is concerned, the same is also as subject matter of trial and the same would not vitiate the proceedings in so far as summoning order is concerned as held in Bombay High Court in Criminal Appeal No.795 of 2018, Prakash madhukarrao Desai Vs. Dattatraya Sheshrao Desai, wherein in paragraph-18, following was observed:-
"18. In view of the aforesaid discussion, it is held that a transaction not reflected in the books of accounts and/or Income Tax returns of the holder of the cheque in due course can be permitted to be enforced by instituting proceedings under Section 138 of the Act of 1881 in view of the presumption under Section 139 of the Act of 1881 that such cheque was issued by the drawer for the discharge of any debt or other liability, execution of the cheque being admitted. Violation of Sections 269-SS and/or Section 271-AAD of the Act of 1961 would not render the transaction unenforceable under Section 138 of the Act of 1881. The decisions in Krishna P. Morajkar, Bipin Mathurdas Thakkar and Pushpa Sanchalal Kothari (supra) lay down the correct position and are thus affirmed. The decision in Sanjay Mishra (supra) with utmost respect stands overruled."
14. Cumulatively analyzing the case from the four corners of law the present case does not finds itself present in any of the exceptional category so as to invoke the present jurisdiction.
15. Accordingly, interference is declined the application stands disposed of leaving it open for the applicant to contest the trial while taking of legal and factual grounds and the Court has no reason to disbelieve that in case such grounds are taken the same shall be considered in accordance with law.
Order Date :- 18.8.2025 Md Faisal