Haji Anisuddin Vs State of U.P. and 2 Others

Neutral Citation No. - 2025:AHC:78346

Court No. - 73

Case :- APPLICATION U/S 528 BNSS No. - 11558 of 2025 (leading application)

Applicant :- Haji Anisuddin Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- J.B. Singh Counsel for Opposite Party :- G.A.

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with

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Case :- APPLICATION U/S 528 BNSS No. - 11439 of 2025 (connected application)

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Applicant :- Haji Anisuddin Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- J.B. Singh Counsel for Opposite Party :- G.A.

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Hon'ble Vikas Budhwar,J.

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Vakalatnama has been filed on behalf of Shri Sameer Khan (A/S 2257/2013) on behalf of counsel for opposite party no.3 in leading and the connected applications, is taken on record. 2. Heard Shri J.B. Singh, learned counsel for the applicant in leading and connected applications and Sri S.K. Singh, learned AGA for the State and Shri Sameer Khan, learned counsel for opposite party no. 3.

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The counsel for the rival parties have made a joint statement that they do not propose to file any further affidavits, thus, with the consent of the parties, the application is being decided at the fresh stage.

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The facts of the leading case are that a complaint was lodged by Abdul Waheed (since deceased) under Section 138 of the N.I. Act

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against the applicant with respect to dishonouring of a cheque of an amount of Rs.6,00,000/- bearing No. 003910 dated 10.04.2024 followed by a statutory demand notice and the complaint. The applicant was thereafter summoned, however, on 23.07.2024, a power of attorney stood executed by Abdul Waheed (since deceased) in favour of the opposite party No. 3, Bilal who happens to be his son for prosecuting the criminal proceedings under Section 138 of the N.I. Act, however, Abdul Waheed expired on 23.08.2024. Thereafter on 08.10.2024, a substitution application came to be preferred by the opposite party no. 3, Bilal. On 16.12.2024, the court below in the complaint case No. 7767 of 2021 substituted the applicant on the basis of the power of attorney on 23.07.2024.

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Questioning the order dated 16.12.2024 passed in case No. 7767 of 2021 under Section 138 of the N.I. Act by a ACJM/ ACJ (J.D.), Court No. 1, Ghaziabad.

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Insofar as the connected application is concerned, broadly the facts are the same relatable to the cheques of an amount of Rs.6,00,000/- and the death of opposite party No. 2 being Abdul Waheed on 23.08.2024 prior to it, execution of a power of attorney by Abdul Waheed to the opposite party No. 3, Bilal on 23.07.2024 filing a substitution application on 08.10.2024 and the order dated 16.12.2024 .

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Learned counsel for the applicant has submitted that the order dated 16.12.2024 passed in complaint case Nos. 7767 of 2021 and 7768 of 2021 impugned in both the proceedings cannot be sustained for a single moment, particularly, in view of the fact that though Section 256 of the Cr.P.C. contemplates a situation on the non-appearance of the death of a complainant, however, being a

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debt and liability accrued from the dishonoring of the cheque, it might be a case for allowing the substitution application preferred by the opposite No. 3, Bilal on account of the death of his father/ original complainant- Abdul Waheed on its own strength, however, the opposite party No. 3, Bilal could not have been made a party to the proceedings while being substituted on the basis of a power of attorney executed on 23.07.2024, particularly, when the executor of the power of attorney, namely, Abdul Waheed stood expired on 23.08.2024 and, thus, in law, the power of attorney stood revoked on account of the death of the propounder. He submits that the said power of attorney could not have been made a basis for making the opposite party No. 3 as a party.

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Shri Sameer Khan who on notice has put in appearance and according to him, whatever might be the legal situation, he submits that the Bilal, being the son of the complainant, has the right to file a substitution application which was filed on 08.10.2024 and he also does not want to go into the legal necessities with respect to substituting him as a complainant on the death of his father on the basis of the power of attorney. He submits that the order dated 16.12.2024 be set aside and the matter be remitted back to Court below to pass fresh orders.

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Learned AGA also adopted the submissions of counsel for the opposite party No. 2.

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Considering the submissions so made as well as the statement so sought to be made by counsel for the opposite party No. 2, this court is not delving into the aspect about the legal framework and the strength of the power of attorney being sought to be deployed for substituting the opposite party no. 3 in the place of the original complainant. Since a substitution application has already been

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filed on 08.10.2024 by the opposite party No. 3, thus, the Court shall pass a fresh order strictly in accordance with the law in the light of the provisions of the CPC.

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Accordingly, the orders dated 16.12.2024, in the complaint case No. 7767 of 2021 and 16.12.2024, in the complaint case No. 7768 of 2021 are set aside.

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The matter stands remitted back to pass fresh order strictly in accordance with law.

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For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 30.05.2025 and the court below shall proceed to decide the said proceeding with most expedition.

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Needless to point out that the Court has not adjudicated upon the merits of the case.

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Accordingly, the applications stand disposed of .

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Order Date :- 13.5.2025 A. Prajapati

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Digitally signed by :- ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad

Haji Anisuddin v. State of U.P. and 2 Others

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