Subhash Chandra Verma vs State Of U.P. And Aother
2023 Latest Caselaw 4088 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 87
 

 
Case :- APPLICATION U/S 378 No. - 12 of 2023
 

 
Applicant :- Subhash Chandra Verma
 
Opposite Party :- State Of U.P. And Aother
 
Counsel for Applicant :- Bhuvnesh Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dinesh Kumar Singh,J.

1. Heard learned counsel for the appellant-applicant and Sri J.P.S. Chauhan, learned AGA and perused the record.

2. The present appeal under Section 372 Cr.P.C. though styled as ?application under Section 378(4) Cr.P.C.? has been instituted against the judgement and order dated 23.11.2022 passed by the learned Additional Judge, Bijnor in Criminal Case No.229 of 2016, under Section 138 Negotiable Instruments Act, Police Station Kotwali Sahar, District Bijnor, thereby the learned trial court has acquitted the accused-respondent no.2 for the offence under Section 138 Negotiable Instruments Act.

3. The prosecution case, in brief, is that the complainant and the accused-respondent were friends. The accused-respondent was running a tractor agency at Nagina. In the year 2015, the accused-respondent was in requirement of some funds for tractor agency. The accused-respondent was given Rs.7,00,000/- by the appellant through Ghasiram Pujari as debt. The accused-respondent promised to return the said amount by September, 2015, but the accused-respondent did not return the amount taken from the appellant and instead, he issued a cheque bearing No.326307 dated 10.9.2015 drawn at Sarv U.P. Gramin Bank for Rs.5,00,000/- and he promised to pay Rs.2,00,000/- in cash to the appellant. The cheque was presented in the bank of the appellant, which was dis-honoured due to insufficient funds.

4. On 12.10.2015, a notice was sent through Lawyer for payment of the amount, but the accused-respondent did not pay the amount and, thereafter, on 2.11.2015, a complaint was filed under Section 138 Negotiable Instruments Act. In the said notice, though the amount of the cheque was mentioned as Rs.5,00,000/-, but the appellant had demanded Rs.7,00,000/- from the accused-respondent.

5. Learned trial court relying on the judgment of the Supreme Court in the case of Suman Sethi Vs. Ajay Kumar Chudiwala, AIR 2000 SC 828 had held that once the notice itself was invalid, the proceedings under Section 138 Negotiable Instruments Act would not be undertaken. Therefore, finding the notice as illegal, the accused-respondent has been acquitted by the impugned judgement and order.

6. Learned counsel for the appellant is not in a position to dislodge the legal issue of invalid notice. Once the appellant demanded Rs.7,00,000/- instead of payment of Rs.5,00,000/- from theaccused-respondent, the notice became invalid and, therefore, the learned trial court has taken the correct view, and this Court does not find any ground to interfere with the impugned judgment and order passed by the learned trial court and entertain the leave to appeal.

7. In view thereof, leave to appeal being devoid of merit and substance, is hereby rejected.

8. Since the leave to appeal is rejected, the appeal is also dismissed.

Order Date :- 8.2.2023

Rao/-