Dismissed

Shanti Ben Jaswant Lal Patel v. State of U.P. . and Another

Allahabad HC25 Jan 2023A482/40904/2022

Case brief

AI extract

What is this about?

The High Court dismissed an application under Section 482 CrPC challenging proceedings for cheque dishonour. It held that the death of the payee does not abate proceedings when the complainant is an authorized power of attorney holder. It directed the trial court to conclude the decade-old trial within three months.

What did the court decide?

The application challenging the proceedings and non-bailable warrants was dismissed; the trial was directed to conclude within three months.

Shanti Ben Jaswant Lal Patel Vs State of U.P. . and Another — Cheque Dishonour | Allahabad HC (2023)

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Court No. - 65

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Case :- APPLICATION U/S 482 No. - 40904 of 2022

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Applicant :- Shanti Ben Jaswant Lal Patel Opposite Party :- State Of U.P. . And Another Counsel for Applicant :- Dur Vijay Singh Counsel for Opposite Party :- G.A.

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Hon'ble Rajiv Gupta,J.

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Heard learned counsel for the applicant and learned A.G.A. for the State.

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By means of this application under Section 482 Cr.P.C., the applicant has challenged the entire proceedings of Complaint Case No. 1665 of 2018 (Shakti Traders Vs. Mahendra Textiles), under Section 138 of the Negotiable Instruments Act, P.S. Gandhipark, District Aligarh, pending in the court of learned Special Judge/ Additional Magistrate, Aligarh as well as non-bailable warrants and proceedings initiated under Section 82 Cr.P.C.

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As per the allegations made in the complaint, it is alleged that the applicant had issued seven cheques bearing cheque Nos. 041810 to 041815 and cheque No. 069196, all dated 27.9.2004, for a total sum of Rs. 1,80,947/-. On presentation of the said seven cheques, all were dishonoured by the bank with the remarks 'stop payment' and 'insufficient funds' .

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On dishonour of the said seven cheques, the opposite party no. 2 sent a notice through registered post to the applicant to make good the payment of the cheques amount. However, despite service of notice, the applicant did not make good the payment of the cheques amount, as such, the payee authorized one Gopal Kumar Gupta to be his power of attorney and authorized him to undertake all legal steps for filing the complaint etc. on his behalf and pursue the proceedings.

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Pursuant to the said authorization, the opposite party no. 2, as the power of attorney holder of the payee of the cheques, filed a complaint under Section 138 of the Negotiable Instruments Act, before the Magistrate concerned.

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On the basis of the said complaint, the learned Magistrate after recording the statements of the witnesses and

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making requisite enquiry under Section 202 Cr.P.C., summoned the applicant to face trial vide order dated 24.01.2005.

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Perusal of the record shows that the applicant challenged the said order before this Court by means of an application under Section 482 Cr.P.C. No. 9663 of 2005. The said application was disposed of with certain directions. However, the prayer for quashing the entire criminal proceedings was turned down.

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Perusal of the record shows that since then, the present proceeding is still pending and consequently, the applicant moved an application before the trial court to deposit the entire due amount. However subsequently, instead of depositing the due amount, the applicant filed an application stating therein that the payee of the present case Mahendra Gopi Chandra Bhatia has already expired on 16.8.2012 and therefore, the power of attorney given by him to the opposite party no. 2 has come to an end, as such, the proceedings under Section 256 Cr.P.C. be dropped and applicant be acquitted.

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Learned counsel for the applicant has next submitted that in view of pendency of the said application filed under Section 256 Cr.P.C., non-bailable warrants and the proceedings under Section 82 Cr.P.C. against the applicant, be quashed.

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Per contra, learned A.G.A. has submitted that from perusal of the complaint itself, it is evident that the payee Mahendra Gopi Chandra Bhatia has authorized opposite party no.2 to be his power of attorney holder and to take all legal proceedings for recovery of the cheque amount, which has already been filed and the proceedings are going on. However, the applicant has been lingering the said proceedings from the last 15 years on one pretext or the other and as such, non-bailable warrants and the proceedings under Section 82 Cr.P.C. has rightly been issued against him.

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It is further pointed out here that merely on account of death of the payee, the instant proceedings cannot be abated as the instant proceeding has been initiated by the opposite party no. 2 being the authorized power of attorney holder of the drawer, who is still alive and pursuing the proceedings and competent enough to contest the said proceedings. The death of the payee will have no effect to the said proceedings.

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Having considered the rival submissions made by learned counsel for the parties and taking into consideration the fact that the instant proceeding has been initiated by the opposite party no. 2 being the authorized power of attorney holder of the payee Mahendra Gopi Chandra Bhatia and therefore, even in case of his death, the said proceeding cannot be abated and will continue through the power of attorney holder. The opposite party no.2 being authorized complainant, being the power of attorney holder in the present case is well within his competence to pursue the present case and the applicant cannot be acquitted and the entire proceedings of complaint cannot be quashed including the issuance of non-bailable warrants and proclamation under Section 82 Cr.P.C.

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The present application under Section 482 Cr.P.C. is devoid of merits and is accordingly dismissed.

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Looking to the fact that the present proceedings has been lingering on since 2005 and has not yet been concluded despite lapse of more than 17 years, the trial court is directed to make all endeavours to conclude the aforesaid proceedings preferably within a period of three months without giving any unnecessary adjournments to either parties.

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Order Date :- 25.1.2023 n.u.

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Digitally signed by :- NASEEM UDDIN High Court of Judicature at Allahabad

Shanti Ben Jaswant Lal Patel v. State of U.P. . and Another

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Shanti Ben Jaswant Lal Patel v. State of U.P. . and Another

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