Allahabad High Court
Smt. Lata Yadav vs State Of U.P. And Another on 6 January, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:2571 Reserved on : 17.10.2024 Delivered on : 06.01.2025 Court No. - 80 Case :- CRIMINAL REVISION No. - 4570 of 2023 Revisionist :- Smt. Lata Yadav Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Anamika Singh,Pooja Singh,Raj Deo Singh,Rajesh Yadav,Samta Singh Kushwaha Counsel for Opposite Party :- G.A. Hon'ble Ram Manohar Narayan Mishra,J.
1. Heard Sri Rajesh Yadav, learned counsel for the revisionist, Sri Prashant Singh, learned counsel for respondent no. 2 and learned AGA for the State.
2. Learned counsel for respondent no. 2 raised preliminary objection regarding maintainability of present revision. As per status report of case concerned, same is fixed for recording statement of the accused on charge.
3. This criminal revision has been directed against the order dated 4.7.2023 passed by Chief Judicial Magistrate, Moradabad in complaint case no. 1506 of 2020 (Hariom vs. Smt. Lata Yadav) under section 138 of Negotiable Instrument Act whereby learned Chief Judicial Magistrate rejected the discharge application filed by the applicant under section 251 of Cr.P.C.
4. The factual matrix of the case in brief is that the complainant who is opposite party no. 2 in present revision has filed a complaint against the opposite party for charge under section 138 of NI Act on 28.1.2020 on allegation that the complainant had given loan Rs. 03 lakhs to the opposite party on her request due to old acquaintance; she failed to repay the loan even after giving complainant an assurance therefor. The opposite party drew an account payee cheque worth Rs. 03 lakh dated 23.12.2019 and delivered it to the complainant on Syndicate Bank, Majhola, Moradabad in discharge of the debt. The complainant presented the cheque for encashment before his banker on 23.12.2019 but the cheque was dishonoured with endorsement of "insufficient fund". The complainant gave a demand notice to the opposite party when the cheque got bounced. Notice was duly served through registered post on opposite party no. 2 but she neither responded the notice nor paid cheque amount. Therefore, complainant was left with no other option but to file a complaint against the opposite party under section 138 of NI Act.
5. At the stage of recording of statement of accused for charge as case is being tried as a summon case, the opposite party filed an application under section 251 Cr.P.C., wherein, it is stated that time limit prescribed under section 138(c) and section 142 (b) of NI Act has not been observed by the complainant while filing the complaint. Therefore, due to non adherence of time schedule laid down under section 138 and 142 of NI Act, the opposite party is liable to be discharged. Provision of section 138 of NI Act is reproduced as under:
138. Dishonour of cheque for insufficiency, etc., of funds in the account.--
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:Provided that nothing contained in this section shall apply unless--(a)the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;(b)the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and(c)the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
6. Section 142 of NI Act provides as under:
(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.
7. Learned counsel for the revisionist submitted that from bare perusal of section 138(c) and 142 of the Act on facts stated in present complaint it is crystal clear that the complainant has failed to observe the time schedule which is held to be mandatory in judicial decision prescribed under the provision of section 138 and 142 of NI Act, therefore, due to non adherence of provision of section 142 and 138 of the Act, the ingredients of section 138 of NI Act are lacking in the case and the revisionist deserves to be discharged under section 251 Cr.P.C. He next submitted that from the contents of the complaint, demand notice after alleged dishonour of cheque was sent to the opposite party on 26.12.2019 at 14:26 hours and as per receipt of registry and on the proforma of service of notice, date of 26.12.2019 has been mentioned thus, this is quite impossible that notice sent by speed post and shall be served on the addressee in such short span of time, therefore, no cause of action whatsoever has arisen for filing the complaint under section 138 of NI Act due to non compliance of section 138 (c) of NI Act.
8. Learned trial court has dismissed the discharge application under section 151 Cr.P.C. merely on the ground that legal issue which was involved in the complaint case could be considered at the time of hearing of complaint.
9. Per contra, learned counsel for respondent no. 2 submitted that instant case being a case under section 138 of NI Act is summerely triable and trial court can proceed with the case by following procedure prescribed for trial of summons cases. There is no provision under section 251 lies in the Code of Criminal procedure to discharge an accused in a summons case. Inasmuch as there is no provision for discharge in the scheme of Code in a case triable as summons case. He also submitted that otherwise on merit revisionist has been summoned by the trial court after conducting inquiry under section 200/202 Cr.P.C. and finding a prima facie case against the revisionist, no interference is called for in the impugned order whereby discharge application has been dismissed.
10. Hon'ble Supreme Court in Re: expeditious trial of cases under section 138 of NI Act, 1881, suo-motu writ petition (Clr.) No. 2 of 2020 in judgement dated 16.4.2021 held that judgement of this Court Adalat Prasad vs. Rooplal Jindal and others (2004) 7 SCC 338 and Subramanyam Seturaman vs. State of Maharastra and another (2004) 13 SCC 324 have interpreted law correctly and we reiterated that there is no inherent power of trial court to refuse or recall the issue of summons. This does not affect power of trial court under section 322 of the Code to revisit order of issue of process in case it is brought to the court notice that it lacks of jurisdiction to try the complainant. Section 258 of the Code is not applicable to complaint under section 138 of the Act and finding to the contrary in M/s Metres and Instrument Private limited and another vs. Kanchan Mehta (2018) 1 SCC 560 did not lay down correct law to conclusively dealt with this aspect to amendment to the Act empowering the trial court to reconsider / recall summons in respect of complaints under section 138 of the Act shall be considered by the committee constituted by an order of this Court dated 10.3.2021.
11. Thus, Hon'ble Supreme court in above stated judgement clarified that only provision providing for discharge under the Code in summons cases, Section 258 Cr.P.C. is also not applicable in a complaint case under section 138 of NI Act.
12. Section 251 Cr.P.C. under which discharge application was filed by the accused / revisionist does not provide for discharge or recall / quashing of summon issued in summons case. Section 251 Cr.P.C. provides that when in a summon case accused appears or is brought before the Magistrate, the particulars of offence of which he is accused, shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make but it shall not be necessary to frame formal charge. Section 251 Cr.P.C. is co-terminus with section 240 Cr.P.C. which provides that framing of charge in a warrant trial case instituted on police report and section 246 of the Code which provides that framing of charge under section 246(1) of the Code which provides for framing of charge by the Magistrate in a warrant trial instituted otherwise than on police report which includes a complaint case. In a summons trial case where instituted on police report or a private complainant, framing of formal charge is not required and instead substance of accusation is required to be explained to the accused and to seek his option as to whether he intends to plead guilty or has any defence to make. Inasmuch as there is nothing like a provision of discharge in a summon case under section 251 Cr.P.C.
13. With the foregoing discussion, this Court is of the considered opinion that an accused cannot seek discharge under section 251 Cr.P.C. or even under section 258 Cr.P.C. in a summon case instituted on private complaint. Prayer made in the application under section 251 Cr.P.C. which has been rightly dismissed by the trial court is misconceived and misdirected. I find no factual or legal error in the impugned order passed by the trial court. The revision is devoid of merit and deserves to be dismissed.
14. The revision is dismissed.
Order Date :- 06.01.2025 Dhirendra/