Dismissed

Smt. Suranti v. State of U.P. and Another

Allahabad HC4 Nov 2022A482/1373/2022

Case brief

AI extract

What is this about?

In this application under Section 482 CrPC, the applicant challenged a summing order and subsequent proceedings. Despite a prior writ petition quashing a summoning order for the same cause of action, the applicant had accepted the validity of a later revisional order setting aside the dismissal of the first complaint. The court held the applicant estopped from challenging the current proceedings.

What did the court decide?

Prayers to quash the summoning order dated 12.06.2019 and subsequent proceedings were rejected.

Smt. Suranti Vs State of U.P. and Another — Cheque Dishonour | Allahabad HC (2022)

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Court No. - 84

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Case :- APPLICATION U/S 482 No. - 1373 of 2022

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Applicant :- Smt. Suranti Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashish Kumar Singh Counsel for Opposite Party :- G.A.,Kapil Dev Dubey,Pratikdhar Dwivedi,Rahul Kumar

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Hon'ble Saurabh Shyam Shamshery,J.

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In the present case, initially a complaint was filed under Section 138 of Negotiable Instruments Act, 1881 by the opposite party No.2 (complainant) on 29.04.2008 which was dismissed for want of prosecution on 31.07.2008. Admittedly, that order was not immediately challenged and instead the complainant filed a fresh complaint under Section 138 of the Act on 04.08.2008 wherein the applicant was summoned on 19.06.2009 and the said order was challenged before this Court by the applicant under Section 482 bearing No. 16857 of 2010 which was allowed by an order dated 28.09.2012 and summoning order dated 19.06.2019 was quashed. For ready reference, the operative portion is quoted herein :-

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"Now coming to the facts of the present case, it transpires that the cheque was returned back on 7.2.2008 with an endorsement that the funds were insufficient. Legal notice was sent to the applicant on 3.3.2008 demanding the said money. It is stated that the registered notice was returned as refused but the notice through U.P.C was served. The date of service of notice is not disclosed in the complaint. The first complaint was filed on 29.4.08 which was dismissed in absence of the complainant on 31.7.08 with the observation that it appears that the complainant does not want to proceed further in the case. In the circumstances there is no sufficient basis to proceed further and the complaint is liable to be dismissed.

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Admittedly a new complaint on the same cause of action was filed on 4.8.2008 i.e. much beyond the period of limitation as prescribed under Section 142 sub-clause (b) of the Act. According to which such complaint

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be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act. Accordingly, the new complaint i.e. Complaint Case No.302 of 2008 was barred by limitation and hence taking cognizance and summoning the applicant to face trial under Section 138 of the Act by the learned Magistrate vide order dated 19.6.2006 is illegal and without jurisdiction and the subsequent proceedings in lieu thereof are nothing but an abuse of process of the court, which are liable to be quashed and the present petition is liable to be allowed."

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In these circumstances, subsequently, after about four years, the complainant moved a revision petition challenging the order dated 31.07.2008 whereby her first application was dismissed for want of prosecution and the same was allowed by an order dated 07.10.2016 with a direction to proceed from the stage when the first complaint was dismissed.

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Sri Ashish Kumar Singh, learned counsel for applicant fairly submits that the said order dated 07.10.2016 was not challenged by the applicant though she was party to that revision petition and in pursuance of said order, the applicant was summoned on 12.06.2019 and at that stage, an application was moved on her behalf to discharge her, however, the same was dismissed by impugned order dated 22.11.2021.

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Learned counsel further submits that since the subsequent proceedings initiated on the same cause of action were rejected by this Court, therefore, proceedings reinitiated in the first complaint become erroneous and are void ab initio, therefore, liable to be set aside.

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Per contra, Sri Pratikdhar Dwivedi, learned counsel for opposite party No.2 submits that since the order dated 07.10.2016 passed by the Revisional Court whereby the order of dismissal in default in the first complaint dated 31.07.2008 was set aside

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was not challenged at the instance of applicant, therefore, they are estopped to challenge the proceedings on the ground that subsequent proceedings were set aside.

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Heard learned counsel for parties and perused the record.

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Admittedly, the order dated 07.10.2016 passed by the Court of Revision whereby the said revision was allowed and order of dismissal of complaint for want of prosecution was set aside, remained unchallenged, therefore, the applicants at this stage cannot pray that the summoning order as well as further proceedings be set aside as they have accepted that proceedings may go on and that the applicant has chosen to face trial in accordance with law.

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Therefore, the prayers made in this application are liable to be rejected and accordingly rejected, however, the applicant has a liberty to submit her legal arguments at the time of final hearing of complaint case in accordance with law.

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The application stands disposed of .

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Order Date :- 4.11.2022 Nirmal Sinha

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(Sl.No.03/449 fresh cases)

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Digitally signed by NIRMAL SINHA Date: 2022.11.09 16:44:07 IST Reason: Location: High Court of Judicature at Allahabad

Smt. Suranti v. State of U.P. and Another

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Smt. Suranti v. State of U.P. and Another

Case brief

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