Kailash Rajbhar vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:117213

Court No. - 75

Case :- APPLICATION U/S 528 BNSS No. - 13920 of 2025

Applicant :- Kailash Rajbhar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pankaj Kumar Mishra Counsel for Opposite Party :- G.A.

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Hon'ble Vikas Budhwar,J.

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Heard Shri Pankaj Kumar Mishra, learned counsel for the applicant and Sri Vikash Sharma, learned State Law Officer for the State.

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This Court on 29.05.2025 issued notice to the opposite party no. 2.

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There is an office report dated 03.07.2025 that the notice has been served upon the opposite party no.2 through his heirs as per the report of CJM, Gorakhpur. Till the dictation of the order, nobody has put in appearance, thus, this Court has no option to proceed with the matter.

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This application under Section 528 BNSS has been filed by the applicant to quash the entire proceedings in Complaint Case No. 4492 of 2020 (Omprakash Gupta V/s Kailash Rajbhar), U/s 138 Negotiable Instruments Act, 1881, Police Station Pipraich, District Gorakhpur, Pending in the Court of Additional Chief Judicial Magistrate, Court No.14, Gorakhpur.

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Learned counsel for the applicant has submitted that on 26.05.2020, a complaint stood lodged by the opposite party no. 2 with an allegation that with respect to discharge of a liability a cheque bearing No. 771772 of an amount of Rs. 7 lakhs dated

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05.03.2020 was drawn by the applicant in favour of the opposite party no. 2 which on presentation in the bank on 11.03.2020 was dishonoured on 16.03.2020 followed by statutory demand notice dated 20.03.2020 and the complaint on 26.05.2020 and the applicant came to be summoned under Section 138 of the N.I. Act on 24.01.2024. According to the learned counsel for the applicant, bailable warrants were issued, pursuant whereto the applicant obtained bail which is apparent from the order dated 20.05.2024. As per the applicant, the date was fixed on 10.07.2024 for statements under Section 251 of the Cr.P.C., however, no such statements were recorded and the date fixed was 22.07.2024. He submits that behind the back of the applicant in a cyclo style manner, the statement of the applicant stood noted on 10.07.2024 and thereafter now the proceedings are underway and the nonbailable warrants have been issued. He submits that the manifest error has been committed by the court below while not considering the aspect of the matter that no such statement was recorded on 10.07.2024.

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Learned State Law Officer submits that first of all dilatory tactics is being adopted as there happens application under Section 482 No. 26635 of 2023 being a proceeding instituted by the opposite party no. 2 wherein a direction had been issued by the coordinate bench of this Court on 21.09.2023 for expeditious disposal of the proceedings within a period of six months and further according to him on 10.07.2024, the statements under Section 251 were recorded of the applicant as he was present there and his signature was there, however, the word 'Virchit' has been wrongly typed. He further submits that non-bailable warrants have been issued against the applicant and it is always open for the applicant to appear before the court below and to take all legal and

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factual grounds which are advisable and permissible under law, in case, he thinks that there has been some technical error then it is always open to get it rectified.

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I have heard the learned counsel for the parties and perused the record.

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Apparently, a complaint stood lodged for dishonoring of a cheque against which a statutory demand notice was issued and the complaint was filed and applicant came to be summoned. The bailable warrants were issued pursuant whereto the applicant was obtained bail.

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As regards, the submission of the learned counsel for the applicant that on 10.07.2024, no statements under Section 251 Cr.P.C was recorded and there happens to be a procedural error is concerned, in the opinion of the Court, it is always open for the applicant to appear before the court below and to point out any error if it is there.

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Accordingly, the application disposed of granting liberty to the applicant to file a recall application for recalling of the nonbailable warrants of the order by by 05.08.2025 and on the said motion, the court below shall decide the discharge application with most expedition.

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Till the recall application is decided, no coercive action is being taken against the applicant in pursuance of Complaint Case No. 4492 of 2020 (Omprakash Gupta V/s Kailash Rajbhar), U/s 138 Negotiable Instruments Act, 1881, Police Station Pipraich, District Gorakhpur, Pending in the Court of Additional Chief Judicial Magistrate, Court No.14, Gorakhpur.

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The protection accorded to the applicant is only available subject to compliance of the terms and conditions and timeline as provided herein and in case of default, the order shall stand vacated without reference to the Bench.

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It is further clarified that it is always open for the applicant to point out the technical infirmity, if there are as argued by the applicant before the court below and this Court has no reason to disbelieve then the same shall be considered in correct perspective.

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Order Date :- 18.7.2025 A. Prajapati

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

Kailash Rajbhar v. State of U.P. and Another

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