Allahabad High Court
Tarun Kant Agrawal vs State Of U.P. And Another on 13 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:78452 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 16620 of 2025 Applicant :- Tarun Kant Agrawal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajesh K.S. Chaudhary Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
1. Heard Sri Rajesh K.S. Chaudhary, learned counsel for the applicant and Sri J.P. Gupta, learned AGA for the State.
2. This application u/s 528 of BNSS has been preferred for quash the entire proceedings in Complaint Case no. 10270 of 2022 namely Rajesh Kumar Agrawal Vs. Tarun Kant Agrawal Under Section 138 N.I. Act, Police Station Kotwali City District Bulandshahr. (Annexure no.1) and summoning order dated 20.08.2022 passed by the learned Additional Civil Judge (J.D.) /Judicial Magistrate Court no. 5, Bulandshahr, may also be quashed (Annexure no.5).
3. Learned counsel for the applicant has submitted that on 27.06.2022, a complaint was lodged by the opposite party no. 2 against the applicant under Section 138 of the NI Act with respect to dishonoring of a cheque of an amount of Rs. 20,00,000/- dated 03.06.2022. Learned counsel for the applicant submits that there is no date mentioned regarding dishonoring of the cheque and as per the averments contained in para 5 of the complaint, a statutory notice was issued on 07.06.2022, however, the applicant in connivance with the postman, refused to receive the said cheque and the complaint was lodged on 27.04.2022 thereafter, the applicant have been summoned on 20.08.2022 under Section 138 of the NI Act. Learned counsel for the applicant submits that first of all, no statement under Section 200 and 202 had been recorded of the opposite party no. 2. Submission is that before summoning the applicant, the statement under Section 200/202 of Cr.P.C. ought to have been recorded and then the applicant could have been summoned. It is also argued that there is no date of dishonoring of the cheque mentioned in the complaint, thus, the complaint is bound to fall as the same is not as per the provision contained under Section 138 and 142 of the NI Act. Next, it is contended that the applicant has not received the notice as there is nothing on record to substantiate otherwise.
4. Learned AGA has opposed the application.
5. I have heard the submission so made across the bar and perused the record carefully.
6. The first and foremost question which would arise would be as to whether in the proceedings under Section 138 of the NI Act recording of statement under Section 200/202 of the Cr.P.C. is mandatory or not. The Hon'ble Apex Court in a Constitutional Bench judgment expeditious trial of cases under Section 138 of NI Act, 1881 In Re: 2021 (16) SCC page 116 in para 12, it was 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 documents for satisfaction as to the sufficiency of grounds for proceeding under Section 202."
7. Further, the said judgment came to be followed by a Coordinate Bench in a coordinate Bench of this Court Application U/S 482 No.14051 of 2008, Virendra Kumar Sharma vs. State of U.P. and another decided on 8.12.2021 has observed as under:-
"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."
8. Thus, non recording of the statement under Section 200 would not be fatal in the matters pertaining to NI Act. As regards the submission of the learned counsel for the applicant that the date of dishonoring of the cheque was not mentioned in the complaint is concerned, the same may not be fatal as the same may be a ground which can be taken in a trial particularly when the date of the cheque is 03.06.2022 and the date of notice is 06/07.02.2022. Moreover, as regards the submission that the notice was sent on incorrect address and the allegation contained in the complaint that the applicant in connivance with the postman manipulated the service and refused to take the same despite fully aware is concerned, the same is an issue which needs determination at the stage of trial and not at the stage of summoning.
9. At this stage, learned counsel for the applicant, as per the instructions from his client, submits that the applicant shall proceed for compounding under Section 147 of the N.I. Act in view of the judgement in Damodar S. Prabhu Vs Sayed Babalal AIR 2010 SC 1907.
10. Accordingly, no ground made out for interference, application is rejected granting liberty to the applicant to prefer appropriate application for compounding under Section 147 of N.I. Act by 30.05.2025 and on the submission of the same, the court below shall decide the same within 45 days and, in case, such proceeding is preferred before the court concerned, then this Court has no reason to disbelieve that the same shall be decided with most expedition strictly in terms of the judgment passed in Damodar S. Prabhu (supra).
11. Till the application is decided, no coercive action shall be taken against the applicant with respect to Complaint Case no. 10270 of 2022 namely Rajesh Kumar Agrawal Vs. Tarun Kant Agrawal Under Section 138 N.I. Act, Police Station Kotwali City District Bulandshahr. (Annexure no.1) and summoning order dated 20.08.2022 passed by the learned Additional Civil Judge (J.D.)/Judicial Magistrate Court no. 5, Bulandshahr, may also be quashed (Annexure no.5).
12. The protection accorded to the applicant is only available subject to compliance of the terms and conditions and timeline as provided herein and in case of default, the order shall stand vacated without reference to the Bench.
Order Date :- 13.5.2025 Rajesh