Shashi Agarwal and Another Vs State of U.P. Thru. Prin. Secy. Home Lko. and Another

Neutral Citation No. - 2025:AHC-LKO:5808

Court No. - 30

Case :- APPLICATION U/S 482 No. - 264 of 2025

Applicant :- Shashi Agarwal And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Applicant :- Ashok Kumar Rai,Ashish Jaiswal,Surendra Pal Singh

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Counsel for Opposite Party :- G.A.

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Hon'ble Om Prakash Shukla,J.

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1. Vakalatnama filed today on behalf of respondent no.2/complainant by Shri Ramesh Chandra Agarwal, Advocate, is taken on record.

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2. Heard Shri Surendra Pal Singh, learned Counsel for the applicants, learned AGA for the State/respondent no.1 and Shri Ramesh Chandra Agarwal, learned Counsel for the respondent no.2/complainant and perused the record.

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3. The present application under Section 482 Cr.P.C. has been filed by the applicants, Shashi Agarwal and Gopal Das Agarwal , seeking to quash the proceedings of Complaint Case No. 39517 of 2023 : Ramesh Chandra Agarwal Vs. Ramesh Diamonds Pvt. Ltd. and others, filed under Section 138 of Negotiable Instruments Act, 1881, Police Station Hazratganj, district Lucknow as well as summoning order dated 18.04.2024 passed by the Additional Court No.2, Lucknow in the aforesaid complaint case.

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4. The brief facts of the case are that the respondent no.2/complainant had filed a complaint against the applicants under Section 138 of the Negotiable Instruments Act, 1881 with the allegation that applicant took loan of Rs.32,00,000/- from the complainant/respondent no.2 and, therefore, just to repay that amount, applicants issued Cheque No. 034490 dated 31.01.2023 amounting to Rs.30,00,000/- to the complainant/ respondent no.2. The complainant/respondent no.2, thereafter, has presented the said cheque to his bank, namely, H.D.F.C., Pranay Towers, Lucknow, but the Bank has returned the same vide memo dated 07.02.2023 with the endorsement 'Refer to Drawer'. Thereafter, the complainant/respondent no.2 sent registered legal notice dated 07.03.2023 to the applicants, demanding the payment of the cheque amount, but the applicant has not paid any amount. In this background, the complainant/ respondent no.2 has filed Complaint Case No. 39517 of 2023 under Section 138 of the Negotiable Instruments Act, 1881 on 21.04.2023. Complainant/respondent no.2, in support of his claim, has also filed his statement under Section 200 Cr.P.C. read with Section 145 of Negotiable Instruments Act, 1881 as well as documentary evidence i.e. cheque in question, bank memo, registered notice and registry receipt, under Section 202 Cr.P.C. The trial Court, appreciating the material on record, summoned the applicants vide order dated 18.04.2024. It is this

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order dated 18.04.2024, which has been challenged by the applicants in the present application.

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5. Learned Counsel for the applicants submits that the trial Court, without recording the statements of respondent no.2/complainant and witnesses, under Section 200 and 202 Cr.P.C., has passed the impugned summoning order dated 18.04.2024. He also states that on presenting the cheque before the Bank, it was returned with the endorsement 'Refer to Drawer'. This reason of dishonour does not come within the ambit of offense under Section 138 of the Negotiable Instruments Act, 1881. Therefore, the impugned summoning order is bad in law and is liable to be quashed.

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6. Per contra, placing reliance upon the judgment of a Coordinate Bench of this Court in Application U/s 482 No. 14051 of 2008 : Virendra Kumar Sharma Vs. State of U.P. and another, decided on 08.12.2021 and Application U/s 482 No. 17464 of 2024 : Vijay Kumar Vs. State of U.P. and another, decided on 23.05.2024, learned Counsel for the complainant/respondent no.2 has contended that in Virendra Kumar Sharma (supra), a Co-ordinate Bench of this Court, while noting paragraph-12 of the the judgment of the Constitution Bench of the Apex Court In Re: Expeditious Trial of Cases under Section 183 N.I. Act, 1881, reported in AIR 2021 SC 1957, has observed that even on the basis of affidavit

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filed on behalf of the complainant, an accused can be summoned under Section 138 of the Negotiable Instruments Act and there is no need to record statements under Section 200 and 202 Cr.P.C. He further states that in Vijay Kumar (supra) , a Co-ordinate Bench of this Court, while noting the judgments of the Apex Court in Electronics Trade and Technology Development Corporation Ltd. Secunderabad Vs. Indian Technologies and Engineers (Electronics) Pvt. Ltd. and another reported in 1996 (2) SCC 739, M/s Modi Cements Ltd. Vs. Shri Kuchil Kumar Nandi reported in (1998) 3 SCC 249, NEPC Micon Limited and others Vs. Magma Leasing Limited reported in 1999 (4) SCC 253 and Laxmi Dyechem Vs. State of Gujarat reported in (2012) 13 SCC 375, has observed that if the cheque is dishonoured and returned with the endorsement 'case referred to drawer', 'instruction for stoppage of payment', 'exceed arrangement', 'insufficient fund' and 'signature differed or mismatch', then, it will be sufficient for prima facie for issuing process/summon under Section 138 of the Negotiable Instruments Act, 1881. In this backgrounds, learned Counsel submits that the plea of the applicants raised before this Court has no substance and is liable to be rejected.

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7. Having regard to the submissions advanced by the learned Counsel for the parties and going through the record including impugned summoning order, this Court finds that the

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respondent no.2/complainant has filed complaint annexing therewith his statement under Section 200 Cr.P.C. read with 145 of the Negotiable Instruments Act, 1881 on affidavit as well as documentary evidence i.e. original cheque in question, bank memo, registered notice and receipt of registry, under Section 202 Cr.P.C. Based on the material on record, the trial Court has recorded its subjective satisfaction that a case under Section 138 of the Negotiable Instruments Act, 1881 is made out and, accordingly, impugned summoning order has been passed by the trial Court. Thus, in view of Virendra Kumar Sharma (supra) and Vijay Kumar (supra) , plea raised in this regard by the learned counsel for the applicants has no substance.

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8. Admittedly, the cheque given by the applicants to the complainant for presentation before the Bank was dishonoured with the remarks 'Refer to Drawer', which, in view of

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Electronics Trade and Technology Development Corporation Ltd. Secunderabad (supra) , will amount to dishonour within the meaning of Section 138 of the Negotiable Instruments Act, 1881, therefore, the plea of the applicants in this regard has no substance.

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9. Considering the facts and circumstances of the case, this Court is of the view that there is no illegality in summoning the applicant in Complaint Case No. 39517 of 2023 filed under

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Section 138 of the Negotiable Instruments Act, 1881.

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10. The present application under Section 482 Cr.P.C. is,

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accordingly, dismissed .

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(Om Prakash Shukla, J.)

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Order Date :- 28.1.2025 Ajit

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Digitally signed by :- AJIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Shashi Agarwal and Another v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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Shashi Agarwal and Another v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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