Allowed

Irfan Ali v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Allahabad HC5 Aug 2024A482/6880/2024

Case brief

AI extract

What is this about?

Court quashed a summoning order in a cheque bounce case where the complainant filed the complaint prematurely, as the notice delivery date (26.04.2024) was after the 15-day statutory period expired from the notice date (13.04.2024), based on Supreme Court precedents.

What did the court decide?

Challenge to summoning order admitted; proceedings in WS/44051/2024 stayed till next listing.

Irfan Ali vs State of U.P. Thru. Prin. Secy. Home Lko… — Cheque Dishonour | Allahabad HC (2024)

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Court No. - 11

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Case :- APPLICATION U/S 482 No. - 6880 of 2024

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Applicant :- Irfan Ali

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Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Applicant :- Mohd. Waris Farooqui Counsel for Opposite Party :- G.A.

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Hon'ble Abdul Moin,J.

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1. Heard.

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2. Instant petition under Section 482 Cr.P.C.-528 B.N.S.S. has been filed challenging the summoning order dated 03.07.2024, a copy of which is annexure-1 to the petition, passed by the Additional Court No.5, Lucknow in the Case No.WS/44051 of 2024 In re Mohammad Naseem vs Irfan Ali. By the said order, the petitioner has been summoned under the provisions of the Negotiable Instruments Act, 1881 (hereinafter referred to as "Act, 1881").

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3. Issue notice to respondent No.2.

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4. List on the date indicated in the notice as fresh.

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5. Contention of the learned counsel for the petitioner is that the petitioner has been summoned on the basis of a complaint, which has been filed on 02.05.2024 by the respondent No.2, alleging that two cheques issued by the petitioner herein had not been honored. It has been contended that the notice was sent on 13.04.2024 and was served on 15.04.2024 and the complaint itself has been filed on 02.05.2024 and the learned court has summoned the petitioner.

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6. Placing reliance on the track consignment report of the said notice, a copy of which has been filed as part of Annexure-4 to the petition, the argument is that perusal of the said report would indicate that the notice had been sent on 13.04.2024 and yet it had been delivered on 26.04.2024 as per the said report although in one part of the report, it has been indicated that the items had been received on 15.04.2024 which has been considered by the learned court as the notice having been received.

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7. The contention is that perusal of the said report itself would

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indicate that the item had been received in Nirala Nagar (S.O.), Lucknow and thereafter again had been sent to various post offices and finally delivered on 26.04.2024 and the complaint itself having been filed on 02.05.2024 would be premature as per the provisions of Section 138 of the Act, 1881.

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8. In this regard, reliance has been placed on the judgment of the Supreme Court in the case of Gajanand Burange vs Laxmi Chand Goyal : Criminal Appeal No.1229 of 2022 , decided on 12.08.2022 wherein reliance had been placed on an earlier three judges Bench decision of the Hon'ble Supreme Court in the case of Yogendra Pratap Singh vs Savitri Pandey & Anr : (2014) 10 SCC 713 wherein the Apex Court has held that a complaint filed before the expiry of period of 15 days as stipulated in the notice required to be served would not be maintainable.

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9. Keeping in view the aforesaid argument of the learned counsel for the petitioner and from perusal of the track consignment report, it prima facie emerges that the notice has in fact been delivered on 26.04.2024 and consequently the complaint filed on 02.05.2024 would be premature keeping in view the law laid down by the Hon'ble Supreme Court in the case of Gajanand Burange (supra) Yogendra Pratap Singh (supra). As such prima facie a case for interference is made out. It is provided that till the next date of listing of the case further proceedings of Case No.WS/44051 of 2024 In re Mohammad Naseem vs Irfan Ali shall remain stayed.

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10. Meanwhile, counter affidavit(s) may be filed.

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Order Date :- 5.8.2024 prateek

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Digitally signed by :- PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench

Irfan Ali v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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Irfan Ali v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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