Radhey Shyam @ Radhey Shyam Chaubey Vs State of U.P. Thru. Prin. Secy. Home Lko. and Another

Neutral Citation No. - 2025:AHC-LKO:21024

Court No. - 12

Case :- APPLICATION U/S 482 No. - 3173 of 2025

Applicant :- Radhey Shyam @ Radhey Shyam Chaubey Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Applicant :- Amitesh Pratap Singh,Naveen Kumar Singh,Neetu Bhardwaj,Shesh Ram Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Alok Mathur,J.

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Heard Shri Amitesh Pratap Singh, learned counsel for applicant, learned A.G.A. for the State and perused the material available on record.

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By means of the present application under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (482 Cr.P.C.) the applicant has assailed the order dated 07.11.2017 passed by the Presiding Officer, Additional Court No. 5, Lucknow in Complaint No. 7573 of 2017 (HDFC Bank Ltd. Vs. Radheyshyam Chaubey).

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It has been submitted by learned counsel for applicant that the applicant had taken an agricultural loan from HDFC Bank (opposite party no. 2) and entered into a loan agreement bearing no. 50200004327916. The applicant was unable to pay the said loan and had given a cheque bearing no. 000003 dated 07.08.2017 drawn on HDFC for an amount of Rs.3,32,000/-. When presented, the same was returned along with return memo dated 21.07.2017 with the remark "insufficient fund" and accordingly, even after issuance of a legal notice, the applicant did not pay the amount and accordingly, a complaint was filed in the court of learned Additional Chief Judicial Magistrate, Lucknow under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881. The trial court after considering the material available on record as well as the evidence under Section 200 Cr.P.C. and 2020 Cr.P.C. has issued summons.

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4 The delay of seven years has been explained on the ground that the applicant was not aware of the said proceedings and it is only when the bailable warrants have been issued, the applicant has approached this Court. It has been submitted by learned counsel for applicant that at the

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time of taking of the said loan certain agricultural land was mortgaged and in this regard when the opposite party no. 2 proceeded to sell the land, the applicant approached this Court by means of Writ C No. 28028 of 2024 where the State was directed to seek instructions as to why the mortgaged property was neither leased nor sold.

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This Court has perused the interim order dated 23.10.2024, apart from seeking instructions, no restraining order has been passed.

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It is further submitted that the opposite party no. 2 Bank had initiated arbitration proceedings, which has concluded in an award passed against the applicant on 27.05.2024 where the claim of the opposite party no. 2 bank has been allowed and the applicant has been directed to pay the outstanding amount of Rs.11,31,821.65/- along with interest of 18% per annum.

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The summoning order has been assailed on the ground that the respondent bank has approached various forums for realization of the said amount and once they have resorted to arbitration proceedings then they could not have invoked Section 138 of the Negotiable Instruments Act, 1881 simultaneously.

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When a pointed query made to the applicant as to whether he has complied with the award, it was fairly stated that the outstanding amount has still not been paid.

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Learned A.G.A. for the State has opposed the application under Section 528 of the BNSS and submits that at the stage of issuing summons, the trial court has to be satisfied itself with record to the ingredients of Section 138 of the Negotiable Instruments Act, 1881 and once they are complied with summons have to be issued. It was further stated that any defence raised by the applicant can be duly considered at the stage of under Section 139 of the Negotiable Instruments Act, 1881 where the applicant can take a defence that the amount was not legally due or debt has already stands satisfied and is not outstanding due and other defence which he could take under law. He submits that at this stage, the trial court has duly considered the material available on record issued summons and there is no infirmity in the same.

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This Court has considered the rival submissions of learned counsel for parties and perused the record.

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It is noticed that the term loan was obtained by the applicant from the respondent bank and when the outstanding amount was not paid by the applicant, coercive measure have been taken by the respondent bank including resorting to arbitration proceedings and also to sell the mortgaged property. There is no doubt that neither has the mortgaged property been sold nor has the applicant paid the outstanding amount as awarded by the arbitrator. The proceedings under Section 138 of the Negotiable Instruments Act, 1881 can be initiated when the cheque which has been made by the drawer is presented with the Bank and is dishonoured due to insufficient fund then after giving legal notice to the outstanding amount remains unpaid, a complaint under Section 138 of the Negotiable Instruments Act, 1881 can be filed before the competent court.

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When all the conditions necessary for invoking Section 138 of the Negotiable Instruments Act, 1881 are made out the Court is bound to issue summons to the accused who on appearance can join the proceedings and take defence before the court concerned. Merely because the opposite party no. 2 had resorted to other method of recovery including arbitration and sale of the mortgaged property cannot be a ground itself to resist the proceedings under Section 138 of the Negotiable Instruments Act, 1881. The facts would have been different in case the award had been satisfied by payment of the said amount in favour of the claimant or that the mortgaged property has been sold to satisfy the outstanding amount. In such a situation, it could have been argued that the proceedings under Section 138 of the Negotiable Instruments Act, 1881 are the abuse of process of the court but the facts of the present case are clearly distinguishable, inasmuch as, undoubtedly the outstanding amount to the bank has not been paid by the applicant despite an award having been passed against him and for certain reasons even mortgaged property has not been sold.

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Examining the impugned order, this Court finds that there is no denial of the fact that cheque was given by the applicant in favour of the bank, which was returned unpaid as per the bank memo dated 21.07.0217 due to insufficient fund and despite legal notice having been sent to the applicant, the said amount was not paid within a period of fifteen days. All the aforesaid facts have been duly considered by the trial court at the stage of issuance of notice.

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In light of the above, this Court does not find any infirmity in the

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impugned order dated 07.11.2017 passed by the Presiding Officer, Additional Court No. 5, Lucknow in Complaint No. 7573 of 2017. Accordingly, no ground for interference is made out. This application under Section 482 Cr.P.C. being devoid of merits is accordingly, dismissed.

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(Alok Mathur, J.)

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Order Date :- 15.4.2025 Virendra

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

Radhey Shyam @ Radhey Shyam Chaubey v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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Radhey Shyam @ Radhey Shyam Chaubey v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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