Disposed

Brij Mohan Shivhare v. State of U.P. and Another

Allahabad HC14 May 2019A482/19175/2019

Case brief

AI extract

What is this about?

In a Section 482 CrPC application, the Court noted that objections regarding transfer of liability and limitation extension under the Negotiable Instruments Act should be adjudicated by the originating court, directing it to consider the matter within three weeks.

What did the court decide?

Directing the court below to consider the point regarding transfer of liability and limitation within three weeks.

Brij Mohan Shivhare Vs State of U.P. and Another — Cheque Dishonour | Allahabad HC (2019)

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Court No. - 64

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Case :- APPLICATION U/S 482 No. - 19175 of 2019

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Applicant :- Brij Mohan Shivhare Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Harish Chandra Mishra,Narendra Mohan

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Counsel for Opposite Party :- G.A.

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Hon'ble Arvind Kumar Mishra-I,J.

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Heard learned counsel for the applicant, the learned A.G.A. for the State-respondent and perused the material brought on record.

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By way of the instant application, the applicant has sought quashment of the proceeding in Complaint Case No.590 of 2017, Rajendra Prasad Rai Vs. Brij Mohan Shivhare, under Section 138 Negotiable Instruments Act, Police Station Kotwali Jhansi, District Jhansi and the summoning order dated 09.10.2017 passed by the Additional Civil Judge (Senior Division), Court No.1 / Additional Chief Judicial Magistrate, Jhansi.

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Contention raised on behalf of the applicant is confined to the ambit that in this case, in fact cheque was dishonoured on 14.12.2016, later on notice was sent on 22.12.2016 by son of opposite party no.2 but unfortunately he died on 06.01.2017 due to which opposite party no.2 being father of the drawer of the cheque subsequently sent notice on 04.02.2017 to the present applicant which is in violation of fact that subsequent notice will not validate period of limitation prescribed under the provisions of the Negotiable Instruments Act. The responsibility that was created to be discharged was again upon son of opposite party no.2 and opposite party no.2 cannot step into shoe of his son as no liability was ever created against opposite party no.2 to be discharged by him.

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Learned A.G.A. has opposed the prayer for quashment of the summoning order and submitted that the summoning order is just and legal which requires no interference by this Court.

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Upon perusal of the averments made in the accompanying affidavit and upon consideration of document annexed therewith, obviously point raised on behalf of the applicant should normally be considered by the court below itself because the factual as well as legal aspect is inextricably involved in this case. Submission of learned counsel for the applicant carries

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substance insofar proceeding under Section 138 Negotiable Instruments Act is concerned.

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The point to be decided by the court below relates to fact whether liability created under Section 138 Negotiable Instruments Act can be transferred to another person and the period of limitation of filing of the complaint can be extended by subsequent notice, particularly in the context of the present case.

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Thus, in view of above, it is provided that in case the applicant moves application raising aforesaid point before the court concerned within three weeks from today, the same shall be considered and disposed of by the court concerned in accordance with law after giving opportunity of hearing to the parties, expeditiously.

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For a period of three weeks from today or till disposal of the aforesaid application, whichever is earlier, no coercive action shall be taken against the applicant.

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It is made clear that in the event no such application is moved within the time prescribed above, this order will be of no avail to the applicant.

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With the above direction, the instant application under Section 482 Cr.P.C. is finally disposed of.

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Order Date :- 14.5.2019 rkg

Brij Mohan Shivhare v. State of U.P. and Another

Case brief

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Brij Mohan Shivhare v. State of U.P. and Another

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