Allahabad High Court
Sunil Kumar Sharma vs State Of U.P. And Another on 7 March, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:33637 Court No. - 77 Case :- APPLICATION U/S 528 BNSS No. - 44153 of 2024 Applicant :- Sunil Kumar Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Deepak Pandey,Lavlesh Kumar Sharma Counsel for Opposite Party :- G.A. Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard Sri Kartikey Saran and Sri Deepak Pandey, learned counsels for applicant and Sri Raj Bahadur Verma, learned AGA for the State.
2. The instant application has been moved on behalf of the applicant to quash the summoning order dated 13.03.2020 and order dated 22.10.2024 as well as entire proceedings of Complaint Case No.CC-359 of 2024 (Shahanavaj Khan Vs. Noble Buildtech LLP & others) (Old Complaint Case No.693 of 2019), under Section 138 N.I. Act, pending in the court of learned Presiding Officer, Special Court (138 N.I. Act), Gautam Budh Nagar.
3. Facts giving rise to the present petition is that a complaint under Section 138 N.I. Act was filed by opposite party no.2 against the applicant with regard to dishonour of cheque. In that complaint, it was specifically mentioned that applicant is the partner of a firm, namely, Noble Buildtech and it is not disputed that the cheque in question was issued on behalf of the Noble Buildtech and signed by the applicant. The cheque in question was presented for payment, but the bank returned the cheque unpaid on 13.06.2019 with the remark "Funds Insufficient". The said cheque was re-deposited on 15.06.2019, but the same was dishonoured again on 17.06.2019 with the remark "Account Closed".
4. When despite receiving the demand notice cheque amount was not paid then the impugned complaint was filed by the opposite party no.2, in which the impugned summoning order was passed. During pendency of the proceeding, a discharge application dated 15.07.2024 was filed by the applicant under Section 251 Cr.P.C. on the ground that he has left the job prior to issuance of cheque, which was rejected by the court below on 05.06.2024. Thereafter, applicant again filed discharge application on 11.09.2024, under Section 274 of B.N.S.S. (corresponding to Section 251 Cr.P.C.) on the ground that after enforcement of new Act application in pending cases can be filed as per the procedure of new criminal law (B.N.S.S.), but the same was rejected by the court below on 22.10.2024 on the ground that discharge application filed by the applicant has already been rejected on 05.06.2024 on the same ground. All these orders are under challenge in the present case.
5. Learned counsel for the applicant has further submitted that the trial of impugned proceeding has been pending even prior to the enforcement of B.N.S.S. but after the enforcement of B.N.S.S. he has right to file discharge application under Section 274 of B.N.S.S. which is corresponding to Section 251 Cr.P.C. and court below has rejected the discharge application on the ground that earlier discharge application filed by the applicant has already been rejected on 05.06.2024 without considering the fact that earlier discharge application was rejected for want of prosecution.
6. Learned counsel for applicant has submitted that the cheque in question was given as a security cheque by the applicant and it has been misused by opposite party no.2. It is further submitted that actually the applicant is not the partner of the Firm Noble Buildtech, but he was the employee and he has resigned prior to issuance of cheque i.e. 20.01.2019, therefore, no liability is attracted under Section 138 of N.I. Act. It is further submitted that opposite party no.2 has not filed any evidence to substantiate that applicant is also the partner of the Firm Noble Buildtech.
7. Per contra, learned AGA has submitted that the grounds raised by the applicant are disputed question of fact that cannot be decided at this stage.
8. After hearing the submissions of learned counsel for the parties, it appears that there is averment in the complaint as well as statement of opposite party no.2 that the applicant is the partner of the Firm Noble Buildtech and on behalf of which the cheque in question was issued and it is not in dispute that the cheque was signed by the applicant, therefore, being signatory, the partner of Firm the applicant cannot escape from his liability. So for as the contention of learned counsel for the applicant that applicant is not the partner but the employee of the firm, this issue can be raised by the applicant during trial.
9. So for as the contention of learned counsel for applicant that despite rejection of earlier discharge application under Section 251 Cr.P.C. his application under Section 274 of B.N.S.S. is maintainable after the enforcement of B.N.S.S. is mis-conceived. The Division Bench of this Court in the case of Deepu and 4 others Vs. State of U.P. and 3 others in Criminal Misc. Writ Petition No.12287 of 2024, has observed that if the proceeding is pending on the date of enforcement of B.N.S.S. an application in the pending appeal or trial will be considered as per the procedure of Cr.P.C. Therefore, application under Section 274 B.N.S.S. was itself not maintainable. Even otherwise once the discharge application of applicant under Section 251 Cr.P.C. was rejected on 05.06.2024 then without recalling the order dated 05.06.2024 discharge application on the same ground under the garb of new provision of B.N.S.S. is itself not maintainable, therefore, second discharge application of applicant was filed under Section 274 B.N.S.S. was rightly rejected by the court below by order dated 22.10.2024.
10. There is no illegality in the impugned order. Accordingly, the present application is dismissed.
Order Date :- 7.3.2025 Atul