Allahabad High Court
Madhu Sudhan Sharma vs State Of U.P. And Another on 24 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:173161
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 35352 of 2025
Madhu Sudhan Sharma
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Ravindra Sharma
Counsel for Opposite Party(s)
:
G.A.
Court No. - 75
HON'BLE VIKAS BUDHWAR, J.
1. Supplementary affidavit, filed today, is taken on record.
2. Heard Sri Ravindra Sharma, learned counsel for the applicant and Sri S.P. Singh, learned State Law Officer for the State.
3. This application under Section 528 BNSS has been filed by the applicant to quash the condition imposed in order dated 19.08.2025 passed by Additional Sessions Judge, Court No. 14, Agra in Criminal Appeal No. 222 of 2023 (Madhusudan Sharma v. State of U.P. and others), under Section 138 of the N.I. Act, Police Station - Hariparwat, District Agra as well as application dated 29.07.2025, under Section 391 Cr.P.C. /432 BNSS.
4. The case of the applicant is that a complaint under section 138 of the N.I. Act came to be lodged by the opposite party no. 2 against the applicant with an allegation that with respect to discharge of the liability had drawn a cheque bearing no.141264 of Rs. 45,90,000/- and the another cheque no. 833655 of Rs. 80,00,000 dated 24.11.2015 and the cheque no.141264 on presentation in the bank, came to be dishonored on 24.11.2025 and so far as the cheque no. 833655 dated 24.11.2025 of Rs. 80,00,000/- is concerned, the same was dishonored on 16.12.2025 followed by a statutory demand notice dated 21.01.2016 and the complaint on 01.03.2016, pursuant whereto the applicant came to be summoned. Post trial, by virtue of the judgment and order dated 27.09.2023 passed by the Presiding Officer, Special Judge 138 of the N.I. Act, Agra in complaint case No. 1120 of 2016, the applicant came to be convicted while sentencing him for six months simple imprisonment and fine of Rs. 1,68,77,800/- to be paid to the complainant and Rs. 10,00,000/- in the State exchequer.
5. Assailing the same, the applicant herein preferred a criminal appeal bearing No. 222 of 2023. During the pendency of the said appeal, an application under Section 391 Cr.P.C./ 432 BNSS came to be preferred by the applicant for obtaining of the opinion of handwriting experts which came to be rejected and it was recited that the applicant- accused had cross-examined Ankur Agarwal (PW1) and as questions with regard to Akash Sharma, Manish, Ashwani Gupta and the same was replied by Ankur Agarwal, PW1 that Akash Sharma is working in the company of PW1, Ankur Agarwal, so much so Manish Agarwal is also an employee and Akash is a driver and Manish, thus, the work related to bank and on a question being raised, whether PW1, Ankur Agarwal is remembering the fact regarding sending Manish, his employee to take payments from the bank and relatable to the applicant- accused PW1, Ankur Agarwal came up with a stand that he does not remember the same but after looking into the records, he can make statement and with regard to Akash, whether he was sent for taking payment from the applicant, he can only give a statement after looking into the record and Akash and Manish are their employees at 7 to 8 years. In the said application, it was also recited in the proceedings under Section 313 Cr.P.C., a statement has been made by the applicant that the subject cheque 833456 and 833656 had been handed over to the opposite party no. 2 and the receipt with regard to the payment so made and the bank documents and the photographs are already on record and further the father of the opposite party no. 2, Ashok Agarwal had also lodged a first information report being case crime No. 1172 of 2015 in which and Ashok Agarwal, the father of the complainant is PW-2 in the said case and he has stated that the cheques were not to be presented in the bank but they were just for satisfaction to be accorded that the payments would be made and the copy of the first information report is already on record. Thus, the applicant seeks to summon Ashwani Gupta, Akash Sharma and Manish as their presence and statements would be relevant in order to determine the fact that the payments were already made and nothing remains due.
6. The said application on objection by the opposite party no. 2 came to be rejected on 19.08.2025 by the Court of Additional Session Judge, Court no.14, Agra.
7. Questioning the same, the applicant has been filed the present application.
8. Learned counsel for the applicant has submitted that the court below has committed patent error of law apparent from the face of the record in rejecting the application so preferred under Section 391 Cr.P.C./ 432 BNSS, particularly, when under Section 391 Cr.P.C./ 432 BNSS itself provides that the appellate court may take further evidence or direct it to be taken during the pendency of the appeal. Submission is that it is not a situation wherein a new case is being carved out and other documents are sought to be injected, particularly, when the said documents are already on record and due to certain circumstances beyond the control and the comprehensions of the applicant, the said persons could not be summoned and, in case, they are not summoned and opportunity is not accorded to get the documents proved then it would be travesty of justice. He further submits that the court below got swayed with the fact that the dilatory tactics have been adopted, particularly, when it would be justifiable for the Court to give a precise and appropriate judgments if it summon the said persons. Reliance has been placed upon the decision of the Hon'ble Apex Court in Brig Sukhjeet Singh (Retd) MVC v. State of Uttar Pradesh & others; 2019 LawSuit (SC) 72.
9. Learned State Law Officer while countering the submissions so raised by the learned counsel for the applicant has submitted that the present proceedings is nothing but grossest misuse of process of law, particularly, when earlier application under Section 391 Cr.P.C./ 432 BNSS came to be filed for getting the handwriting expert report opinion which came to be rejected, now a new application is being preferred which is nothing but an afterthought, particularly, when it was always open for the applicant to have preferred the said application during the trial prior to the order of the conviction.
10. I have heard learned counsel for the parties and gone through the records carefully.
11. Apparently, post lodging of the complaint under Section 138 of the N.I. Act on 27.09.2023, the trial court convicted the applicant against which an appeal came to be preferred in the year 2023. As per the recital contained in para- 2 of the application under Section 391 Cr.P.C./ 432 BNSS the applicant has come up with a stand that he had preferred an application under Section 391 Cr.P.C./ 432 BNSS for getting an opinion of handwriting expert which came to be rejected.
12. On a pointed query being raised to the learned counsel for the applicant whether the said order was challenged, the answer is in negative.
13. Interestingly, though the appeal was preferred in the year 2023 and on 29.07.2025, the application under Section 391 Cr.P.C./ 432 BNSS came to be preferred for summoning Akash Sharma, Manish, Ashwani Gupta, Manager of the Canara Bank. The submission of the counsel for the applicant is that the said application needs to be allowed, particularly, when there are documents available on record which even prior to order of conviction were before the trial court and, in case, the said persons are summoned then it will make the entire controversy crystal clear that no amount is due and payable by the applicant.
14. Pertinently, Section 391 Cr.P.C./ 432 BNSS is akin to provisions contained under Order 41 Rule 27 of the CPC. Importantly, in the application under Section 391 Cr.P.C./ 432 BNSS in para-7, the applicant has averred as under:
"?? ?? ?????? ??? ???????? ?????? ?? ???? ?????? ?????? 27.09.2023 ??? ??? ?? ?? ?????? ???????? ?????? ???? ??????? ??? ??????? ?? ???? ?? ???????? ?? ???????? ???? ????? ?? ??? ?? ?? ???? ???? ???????? ?? ???????? ????? ???? ?????????? ?? ??????????? ?? ????? ????? ??, ???? ?? ?? ???????? ?????? ???? ??? ?? ????? ???? ?? ???? ????? ?? ?? ??????? ??? ???????? ???? ????? ??? ???? ???????? ?? ?? ????? ?? ??????? ???? ?? ??? ?????? ???? ?????? ???? ???? ???" ???? ?????? ?? ?? ??????? ?????? ?? ????? ????? ?? ???? ?????? ?????? ?? ?? ?? ?? ?????? ??? ????? ???? ???????? ????????? ?? ????????? ?? ?????? ??? ???????? ?? ????? ???????? ???? ?? ??? ??? ??? ???? ??? ???????? ?? ?????? ?????? 27.09.2023 ???? ???? ??? ?? ????? ???? ?? ???? ?????? ????? ???? ???? ???????? ?? ?? ???? ???? ?????? ?? ???? ?????? ??????? ???? ???? ?????? ???"
15. Even otherwise, once it is not the case of the applicant then there was certain circumstances beyond the control and the comprehensions on account whereof he could not prefer an application summoning the said persons thus the said request for summoning the applicant cannot be allowed, particularly, it will amount to filling up the lacunas. The finding of the Additional Sessions Judge, Court No.14, Agra as encapsuled dated 19.08.2025 reads as under:
"???? ????????????? ?? ??????? ???? ???? ??0-62? ???????? ???? ??? ??? ???? ??? ?? ?? ?????? ???????? ??? ???????? ?????? ??????? ? ??????? ?? ????? ?? ??????? ???? ?? ??? ????? ??????? ?????????? ????? ??????? ???? ????? ?? ????? ?? ??, ?? ??????? ??? ?? ???? ?? ??? ??, ?? ?????? ???????? ?? ???????? ?? ??? ??? ??????? ??????? ??????? ??????? ???????? ?? ???? ??????? ?? ???? ???? ???? ???????? ?? ?? ?? ????? ???? ???????? ?? ???? ???????? ?? ?? ?????? ???????? ??? ???????? ????? ???? ???????? 19.08.2022 ??? (1) ???? ????? (2) ??? ????? (3) ???? ????? ?????? (4) ???? ????? (5) ????? ???/??????? ????? ???? (6) ????????/??????? ???? ?? ????? (7) ???? ???????? ??? ????? ??????? ? ????? ??????? (8) ???? ????? ????? ?????? ??????? ???? ????? ??, ?????? ???????? ?????? ?? ???? DW-1 ???? ????? ? DW-2 ???? ????? ?????? ??? ???? ?? ??? ???????? ?? ????? ???? ?? ????????? ???? ?????? 29.07.2025 ??? ???????? ????? ?? ??? ???? ??? ????????? ??? ????? ?? ??????? ???? ????? ?? ????? ?? ??? ??, ????? ????? ??????? ?????? ?? ??? ???????? ?? ?? ?? ?????? ???????? ?????? ???? ??????? ?? ????? ???? ????, ?????? ????????? ?????? ??? ??? ??????? ???????? ???? ???? ???? ????????? ?? ????????? ???? ???????? 29.07.2025 ??? ??????? ?? ?? ?????? ???????? ?? ????? ???? ???? ??????/??????? ??????? ????? ????? ????? ?? ???? ??????? ??? ??? ?????? ???????? ?? ????? ??????? ??????? ?? ?? ???????? ???? ?? ??? ??????-?????? ???? ????????? ?????? ???? ????????? ???? ???????? 29.07.2025 ???? ???? ??? ??????? ?????? ?????? ???? 2016 ??? ???????? ???? ?? ???? ?????? ???? ???????? ?? ???? ?????? ????? ???????? ???? ?? ?????? ???????? ?????? ?????? ?? ????? ???????? ??? ????? ???? ???? ??? ???? ?????? ?? ???????? 7 ???? ??? 2023 ??? ???? ???? ???? ?? ????? ??? ?? ???? ?? ???? ??? ????? ???????? ??? ????????? ?????? ????? ???? ???? ?? ??? ?? ????? ??? ?? ???????? ?? ????????? ???? ???? 391 ?.???.??. ?????? ???? ???????? ?????? ?????? ???? ??? ??? ???? ?? ??????? ????????? ?? ?? ?????? ?????? ???????? ? ?????? ???? ???????? ?????? ???? ?????????? ??? ??????? ???? ??? ??? ?? ?? Lacuna Fill Up ???? ???? ?????? ?? ??? ???? ???? ???? ?????? ????????? ?? ????????? ???? ??????? ?? ? ????? ?? ?? ???? ?? ???????? ??? ?????? ???? ?? ???? ?? ???? ??? ??? ??? ????????????? ?????? ???? ???? ?? ????? ?? ????
???? ??? ?????? ?????
???????? ?? ?????? ?? ????? ???? ?? ?? ???????? ????????????? ?? ?????? ?? ????????? ?????? ???????? ??????? ??? ???? ?????, ???? ? ?????? ?????? ? "???? ?????? ?? ??????? ????? ????? ???? ?? ????? ?? ??? ???
????????? ?? ?????? ?? ?????? ?? ?? ??????? ??? ???????? ?????? ???????? ???? ???? ???? ?? ?????? ?? ????????? ?????? ??????? ??? ???????? ?? ????? ??????? ?????? ?????????? ?? ??????? ????? ???? ????? ??? ??? ???? ?? ?? ????????? ????????? ?? ?? ?????? ?? ????? ?? ???? 311 ????????? ?? ??????? ????????????? ???????? ?? ???????? ?? ?????? ?? ???? ??. ?????? ????????? ?????? ??????? ??? ???????? ?? ????? ?? ?????? ?? ??? ????? ???? ???? ???? ??????? ??? ???????? ?????? ???? ?????? ??? ?? ????? ??? ???? ?? ?? ?????? ???? ??? ??? ????????? ?????? ???? ????????????? ??? ?? ???? ?? ??????? ???? ??? ?? ?? ?????? ???????? ?? ????? ???? ???? ??????/ ??????? ??????? ????? ????? ????? ?? ???? ??????? ??? ??? ???? ?? ?? ????????? ?? ?? ???????? ?????? ??? ??? ???? ?? ??? ?? "?? ???? ????? ??? ??, ?? ??? ??????? ??? ???????? ?? ???? ???? ??, ??? ??? ???? ?????????? ?????? ????? ?? ??? ?? ?????? ?? ????? ???? ?????? ???? ???, ?? ???? ?? ???? ?? ????? ??? ??? ???????? ???? ?? ?? ????? ??? ????????? ?????? ???????? ??????? ????????????? ??????? ???? ???? ????? ???? ???
????????? ?? ?? ?? ?????? ?????? ???????? ?? ???? ???????? State of Gujarat Vs. Mohanlal Jitamalji & Anr. 1987 AIR SC 1321 ???????? ?? ??? ??, ?????? ?????? ?????? ???????? ?????? ?? ??????? ???? ??? ?? ?? "Rejection of request for additional evidence on ground of delay held not justified if the applicant was not responsible for the delay in the proceedings." ????????? ?? ?? ?? ?????? ?????? ???????? ?? ?? ???? ???????? Rambhau Vs. State of Maharashtra, 2001 AIR SC 2120 ???????? ?? "??? ??, ?????? ?????? ?????? ???????? ?????? ?? ??????? ???? ??? ?? ?? "The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it." ?????? ??? ??????? ??? ???????? ?? ???????? ??? ???? ?? ???????? ?? ????? ?????? ???? ???? ?? ?? ?????? ???? ?? ?? ????? ????????? ?????? ?? ???-??? ???????? ????? ??? ?????? ????? ???? ??? ??, ???? ?????? ??? ??? ?????? ??????? ???????? ?? ????? ???????? ???? ???? ??? ??, ????? ?? ?????? ?? ??? ?? ???????/ ??????? ???-2 ?????? ???? ?????? ?? ?????? ????? ???? ??? ?? ??? ????????? ?? ??????? ???????? ???? ???? ???????? ???? ?????? ? ???? ??? ??? ?? ?????? ????????? ?? ?? ?? ???????? ?????? ?????? ???????? ?? ??????? ???? ???????? ????????? ?? ?? ????? ?? ?????? ???, ????? ??? ??? ????????? ?? ???? ??????
???????? ?????? ?????? ???? ???????? ?????? ????? ???????? ???? ????????? ??, ?????? ?????????/ ???????? ?????? ???? ?????? ?? ???????? ??? ??????? ?????? ?? ?????? ????? ???? ???? ???? ???? ??? ?? ????????? ?????? ?????-????? ?????? ?? ????????????? ???????? ?? ?????? ????? ???? ?? ??? ??? ??? ??? ?????? ?? ??? ?? ?? ????????? ???-??? ???????? ???????? ???? ?? ?????? ???? ????? ???
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????????? ?????? ???????? ????????????? 55? ?????? ???? ???? ??? ???????? ?????? ??? ?????? 21.08.2025 ?? ??? ???"
16. Apparently, the applicant during the proceedings before the trial court prior to conviction had submitted the list of the witnesses on 19.08.2022 of (a) Sachin Sharma, (b) Pawan Kumar, (c) Amit Kumar Vashistha, (d) Deepak Verma, (e) Officer/ employees of Canara Bank, (f) Officer/ employee of Bank of Baroda, (g) other witnesses who would be required and (h) Rakesh Kumar Mittal Advocate. However, the applicant produced only DW-1, Sachin Sharma and DW-2, Amit Kumar Mishra. Incidentally in the said list, the names of the said proposed witnesses does not find place. As a matter of fact, it is also not the case of the applicant that he had no knowledge about the factum of existence of the said witnesses and relevance merely making a bald recital in the application seeking summoning of the said proposed witnesses without any justification that too at an appellate stage in the proceedings under Section 391 Cr.P.C./ 432 BNSS would not suffice as what would be relevant would be a circumstances to show that even otherwise due to certain circumstances beyond the control and comprehension, the application for summoning the applicant could not be filed.
17. Nonetheless, the appeal stood preferred in the year 2023 and the application under Section 391 Cr.P.C./ 432 BNSS came to be preferred on 29.07.2025.
18. In the opinion of the Court, the present application is nothing but a device to cure the lacuna. There is another noticeable feature that an application under Section 391 Cr.P.C./ 432 BNSS came to be preferred for opinion of hand writing expert and the said application came to be rejected which has not been subject matter of challenge, thus, preferring of another application on different grounds is not liable to be accepted in the given facts and circumstances of the case.
19. In a recent judgment, the Hon?ble Apex Court in the case of Ajitsinh Chehuji Rathod Vs. State of Gujarat and Another 2024 SCC OnLine SC 77 has held as under:-
?17. Thus, we are of the view that if at all, the appellant was desirous of proving that the signatures as appearing on the cheque issued from his account were not genuine, then he could have procured a certified copy of his specimen signatures from the Bank and a request could have been made to summon the concerned Bank official in defence for giving evidence regarding the genuineness or otherwise of the signature on the cheque.
18. However, despite having opportunity, the accused appellant did not put any question to the bank official examined in defence for establishing his plea of purported mismatch of signature on the cheque in question and hence, we are of the firm opinion that the appellate Court was not required to come to the aid and assistance of the appellant for collecting defence evidence at his behest. The presumptions under the NI Act albeit rebuttable operate in favour of the complainant. Hence, it is for the accused to rebut such presumptions by leading appropriate defence evidence and the Court cannot be expected to assist the accused to collect evidence on his behalf.?
16. Thus, it is clear that Section 391 of Cr.P.C. cannot be pressed to come to rescue of the accused to fill up the lacuna in his defence and to come to aid and assistance for collecting defence evidence for the accused once the accused had opportunity to do the needful during the course of trial."
20. So far as the judgment in Brig Sukhjeet Singh (Retd) MVC (supra) concerned, the same is not applicable in the facts of the case and is distinguishable.
21. The Court finds that the grounds on the basis whereof prayer has been made under Section 391 Cr.P.C./ 432 BNSS is not justifiable and can be said to be in accordance with law. Accordingly, no case is made out for interference. The application stands rejected.
(Vikas Budhwar,J.) September 24, 2025 A. Prajapati