Ankit Sharma Vs State of Up and Another

Neutral Citation No. - 2025:AHC:6005

Court No. - 77

Case :- APPLICATION U/S 482 No. - 25104 of 2024

Applicant :- Ankit Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Raghubir Singh Counsel for Opposite Party :- G.A.

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Hon'ble Arun Kumar Singh Deshwal,J.

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Compliance affidavit filed today by Sri Pankaj Saxena, learned AGA on behalf of Commissioner of Police, Agra, is taken on record.

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Heard Sri Raghubir Singh, learned counsel for the applicant, Sri A.K. Sand, learned Government Advocate and Sri Pankaj Saxena, learned AGAIst for the State.

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The present 482 Cr.P.C. application has been filed to direct the Court below to decide the Complaint Case No.6380 of 2019, Ankit Sharma Vs. Manoj Sharma, under Section-138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act, 1881'), Police Station-Sadar Bazar, District-Agra, pending in Additional Court No.3, Agra.

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This matter was initially heard on 04.12.2024. This Court, on finding that despite issuance of summons, bailable warrants and non-bailable warrants, presence of the accused could not be ensured, for the reason that the process of the Court has not been executed by the Police, therefore, this Court directed the Commissioner of Police, Agra to file his personal affidavit, mentioning the reason why the process of Court has not been executed. In pursuance of that order, the Commissioner of Police, Agra has filed his personal affidavit, mentioning therein in paragraph no.4 that as per his information, no summons/bailable warrant has been received by the Police. This Court, in order to verify this fact, directed the District Judge, Agra vide order dated 13.12.2024 to submit report whether any process of

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Court, which includes summon, bailable warrant and non-bailable warrant, has been actually handed over or dispatch to police personnel.

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In pursuance of the order dated 13.12.2024, learned District Judge, Agra has submitted his report dated 16.12.2024, wherein it is clearly mentioned that summons were sent through registered post to the SHO, Sadar Bazar, Agra which has been duly served upon him as per the tracking report. It was further mentioned by the District Judge, Agra that non-bailable warrant was handed over to police pairokar of Summon Cell on 28.07.2023 and again on 16.09.2023 and signature of pairokar, who received the nonbailable warrant, is also available in the process register and the copy of the process register was also sent along with this report.

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This Court, on being satisfied that the affidavit filed by the Commissioner of Police, Agra is incorrect, opined that it virtually amounts to mislead the court and therefore, directed him vide order dated 03.01.2025 to personally appear before this Court on 10.01.2025 at 10:00 am.

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Today i.e. 10.01.2025 at 10:00 am, when the matter was placed on board, then it was requested on behalf of the learned Government Advocate that because of certain reasons, the Commissioner of Police, Agra is unable to come and requested that matter may be posted for 17.01.2025, so that the Commissioner of Police, Agra may file his personal affidavit to explain the incorrect averments of paragraph no.4 of his earlier affidavit.

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As this Court vide order dated 03.01.2025 directed the Commissioner of Police, Agra to remain present personally to show cause why the proceeding of criminal contempt may not be issued against him, therefore, the Court refused to accept the request of learned Government Advocate. Thereafter, learned Government Advocate requested the Court that the Commissioner of Police, Agra will appear today itself and on the request of learned Government Advocate, the matter was posted at 5:00 pm.

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The Commissioner of Police, Agra, Sri J. Ravinder Goud, is present personally at 5:00 pm and he has also filed a personal affidavit, mentioning therein that he is tendering his unconditional apology for mentioning the incorrect fact in his earlier affidavit. It was further mentioned in this personal affidavit that actually his subordinate police officers had forwarded incorrect report to him regarding non-receiving of any process of Court and for that reason, he, by mistake, mentioned that no process of Court has been received by the Police. It is also mentioned in the affidavit that accused has been arrested on 16.12.2024 and produced before the Court concerned.

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Though the aforesaid explanation submitted by Commissioner of Police, Agra appears to be plausible, but this Court deprecates the practice of relying upon the junior-most police official, without cross checking the record and filing the affidavit, on that basis, before the Court. This Court is of the view that in such cases before filing personal affidavit, Commissioner of Police, Agra, should have cross checked the record. Therefore, there is sheer negligence on the part of Commissioner of Police, Agra.

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This Court expects from Sri J. Ravinder Goud, Commissioner of Police, Agra that he will be more careful in future while filing affidavit before this Court or any other Court of law. As the Commissioner of Police, Agra has complied the order and also submitted proper explanation and accused has already been arrested, therefore, no further order is required to be passed, so far as the Police is concerned.

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The Apex Court in the case of Indian Bank Association and others vs. Union of India and others reported in (2014) 5 SCC 590 , has issued direction for expeditious disposal of the cases under the Act, 1881. Paragraph Nos. 22, 23 and 24 of the aforesaid judgement are being quoted as under:

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"22. We notice, considering all those aspects, few High Courts of the country have laid down certain procedures for speedy disposal of cases under Section 138 of the Negotiable Instruments

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Act. Reference, in this connection, may be made to the judgments of the Bombay High Court in KSL and Industries Ltd. v. Mannalal Khandelwal, Indo International Ltd. v. State of Maharashtra (2005) 44 Civil CC and Harischandra Biyani v. Stock Holding Corpn. of India Ltd. (2006) 4 MhLJ 381, the judgment of the Calcutta High Court in Magma Leasing Ltd. v. State of West Bengal and others (2007) 3 CHN 574 and the judgment of the Delhi High Court in Rajesh Agarwal v. State and another (2010) ILR 6 Delhi 610.

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Directions

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23. Many of the directions given by the various High Courts, in our view, are worthy of emulation by the Criminal Courts all over the country dealing with cases under Section 138 of the Negotiable Instruments Act, for which the following directions are being given :-

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23.1. The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.

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23.2. The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The court, in appropriate cases, may take the assistance of the police or the nearby court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow-up action be taken.

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23.3. The court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, the court may pass appropriate orders at the earliest.

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23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination.

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23.5. The court concerned must ensure that examination-in-chief, cross-examination and reexamination of the complainant must be conducted within three months of assigning the case. The court has option of accepting affidavits of the witnesses, instead of examining them in the court. The witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the court.

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24. We, therefore, direct all the criminal courts in the country dealing with Section 138 cases to follow the above-mentioned procedures for speedy and expeditious disposal of cases falling under Section 138 of the Negotiable Instruments Act. Writ Petition is, accordingly, disposed of, as above."

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The Apex Court in the case of In Re: Expeditious Trial of Cases under Section 138 of the Act, 1881, reported in 2021 SCC Online 325 has already issued following directions for expeditious trial u/s 138 of the Act, 1881 as under:-

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24. The upshot of the above discussion leads us to the following conclusions: 1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial.

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2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court.

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3) For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses. 4) We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code.

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5) The High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint under Section 138 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction.

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6) Judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) have interpreted the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court's notice that it lacks jurisdiction to try the complaint.

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7) Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in Meters and Instruments (supra) do not lay down correct law. To conclusively deal with this aspect, amendment to the Act empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021.

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8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee.

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From the above mentioned judgements of Apex Court, it is clear that the Apex Court for expeditious disposal of cases under the Act, 1881 has issued several directions which the concerned court/Magistrate has to follow while deciding the cases under the Act, 1881. From the observations of the Apex Court as well as analysis of Sections 138 & 143 of the Act, 1881, it is expedient that all the proceedings under the Act, 1881 should be concluded expeditiously without going into unnecessary technicality.

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Considering the aforesaid judgements, this Court directs the Additional Court No.3, Agra to decide the Complaint Case No.6380 of 2019, Ankit Sharma Vs. Manoj Sharma, under Section-138 of the Act, 1881, Police Station-Sadar Bazar, District-Agra, keeping in mind the direction of the Apex Court in above mentioned cases, expeditiously, preferably within a period of six months from the date of receipt of certified copy of this order, strictly in accordance with statutory provision of Sections 143(2) and 143(3) of the Act, 1881, if there is no legal impediment.

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It is also directed to the concerned court that for ensuring the presence of accused during trial, it should not hesitate to take coercive measures provided under Cr.P.C.

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With the aforesaid direction, the application is disposed of .

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Personal appearance of Sri Ravinder Goud, Commissioner of Police, Agra is exempted.

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Order Date :- 10.1.2025 S.Chaurasia

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Digitally signed by :- SHUBHAM CHAURASIA High Court of Judicature at Allahabad

Ankit Sharma v. State of Up and Another

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