M/S Kashish Enterprises Thru Prop Hameed Ullah Khan v. State of U.P Thru Addl Chief Secy and Another

Allahabad HC25 Jan 2022A482/82/2022

Case brief

AI extract

What is this about?

In this application under Section 482 CrPC, the High Court modified an order declaring a cheque bounce complaint premature. The Court held that since the prescribed period for demanding payment has now elapsed, the applicant is permitted to file a fresh complaint within one month.

What did the court decide?

Petitioner permitted to file a fresh petition before the learned trial court within one month; the order dated 18.11.2021 is modified accordingly.

M/S Kashish Enterprises Thru Prop Hameed Ullah Khan Vs… — Cheque Dishonour | Allahabad HC (2022)

¶1

Court No. - 13

¶2

Case :- APPLICATION U/S 482 No. - 82 of 2022

¶3

Applicant :- M/S Kashish Enterprises Thru Prop Hameed Ullah Khan Opposite Party :- State Of U.P Thru Addl Chief Secy And Another Counsel for Applicant :- Raghvendra Pratap Singh,Anil Kumar Pandey,Rama Pati Shukla Counsel for Opposite Party :- G.A

¶4

Hon'ble Karunesh Singh Pawar,J.

¶5

Heard learned counsel for the applicant.

¶6

The notice to the opposite party nos. 1 and 2 are dispensed with. The impugned order dated passed by the Additional District and Sessions Judge, Court No. 1, Sultanpur in Criminal Revision No. 11 of 2021 (Ankur Ashthana Vs. State of U.P. and others) which is under challenged, is extracted below:-

¶7

"1.This Criminal Revision is filed by Ankur Ashthana against opposite parties for quashing the order dated 6.10.2020 which is passed in criminal case no. 6516/2020 U/S-138 N.I. Act P.S.-Kotwali, DistrictSultanpur by Additional Civil Judge/J.D./Judicial Magistrate Court No. 31 Sultanpur. It has been stated by the revisionist that the order passed by the lower court illegal order and beyond jurisdiction.

¶8

2.The counsel for the revisionist Shri Arvind Kumar Singh Raja submitted that the learned Magistrate passed this order without applying the provision of law which makes the impugned order beyond jurisdiction and illegal. He further submitted that for the suit file u/s 138 N.I. Act is premature because revisionist filed this complaint before learned Magistrate before expiring the prescribed date which is 15 days after the one month notice. He mention the document filed by the revisionist in his support paper no. 13 kha/2 and put impassive on the complaint which was fled before the learned Magistrate. In which the date of presentation of the complaint is mention 23.09.2020 and the Bank report which denotes the dishonour of the check is dated 03.09.2020. The learned counsel pleased that in this way the complaint this file within the time in which revisionist has opportunity for the payment of dues. Learned counsel further pleaded that file learned Magistrate passing order he overlooked that the complaint was filed within 15 days therefore the impugned order is not sustainable order and pray to rejected impugned order.

¶9

3. The opposite party counsel pleaded that when he filed before the Learned Magistrate that was not registered on the same date 23.09.2020 but the complaint was registered by learned court registered the complaint on 28.09.2020. At in this way the 15 days was completed and the submitted that the impugned order is illegal and that is well within the jurisdiction of lower court, because the lower court has power to summon the accused if he has committed offence u/s 138 NI Act.

¶10

4. After hearing the both party and perusing the file it is clear that the papers filed by the revisionist in support of the revisionist clarifies that the complaint was filed on 23.09.2020. It is supported with the document paper no. 7, paper no. 13 kha, paper of the e-court service copy. By perusing the complaint itself it is obvious that the complaint was filed in court of judicial Magistrate on 23.09.2020 and the registered that is also on 23.09.2020. Therefore, it is proved that this complaint was filed before learned judicial magistrate before completing 15 days after the one month notice. Therefore, the impugned order is illegal order because this order is a against the provision of law.

¶11

5. It is mentionable here that so far as the complaint is concerned this complaint is premature and complainant has right to file another complaint before competent authority.

¶12

Therefore, court is of the view that this criminal revision is liable to be allowed.

¶13

Order

¶14

The Criminal Revision is allowed and impugned order dated 06.10.2020 is rejected. Send the copy of the order to the lower court for deciding the matter afresh. "

¶15

Learned counsel for the applicant submits that complaint was filed before the learned Chief Judicial Magistrate, which was treated as premature by the learned revisional court. He has filed complaint before expiring the prescribed date which is 15 days after the one month notice. He also submits that in paragraph no. 5 of the impugned order the following observations has been made by the learned revisional court:-

¶16

"5. It is mentionable here that so far as the complaint is concerned this complaint is premature and complainant has right to file another complaint before competent authority."

¶17

On the one hand the complaint has been treated as premature and has been observed that complainant has a right to file another complaint before the competent court and on the other hand the criminal revision was allowed and lower court was directed to decide the matter afresh.

¶18

Learned counsel for the applicant submits that this order has created confusion before the learned trial court when he appeared before it. Only this much may be provided that the petitioner may be permitted to file fresh complaint and learned trial court be directed to decide the same strictly in accordance with law.

¶19

On due consideration of the submission of the learned counsel for the applicant and an innocuous prayer of the learned counsel for the applicant, the Court is of the view that since on the

¶20

earlier occasion the complaint was filed prematurely, now the prescribed period is complete and therefore, the petitioner can be permitted to file a fresh complaint.

¶21

Accordingly, the petition is disposed of. The order dated 18.11.2021 passed in Criminal Revision No. 11 of 2021 by the Additional District and Sessions Judge, Court No. 1, Sultanpur is modified to the extend that the petitioner is permitted to file a fresh petition before the learned trial court within a period of one month and the same shall be decided strictly in accordance with law.

¶22

Order Date :- 25.1.2022 Anuj Singh

M/S Kashish Enterprises Thru Prop Hameed Ullah Khan v. State of U.P Thru Addl Chief Secy and Another

Case brief

What is this about?

What did the court decide?

M/S Kashish Enterprises Thru Prop Hameed Ullah Khan v. State of U.P Thru Addl Chief Secy and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Lalit Tharu Vs State of U.P. Thru Its Secy Home Deptt Civil Secy U.P.

Manish Kumar Vs State of U.P. Thru. Prin. Secy. Home Civil Sectt. U.P. Lucknow

Rakesh Kumar Kushwaha Vs State of U.P.

Shailendra Kumar and Another Vs State of U.P. Thru Prin Secy Home Civil Secy and Another

Reeta Khari and Ors. Vs State of U.P. and Anr.

Deepak Ranjan Pandey Vs State of U.P. and Anr.