Rajesh Yadav vs State Of U.P. And Another
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Allahabad High Court

Rajesh Yadav vs State Of U.P. And Another on 5 May, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:71817
 
Court No. - 73
 

 
Case :- APPLICATION U/S 528 BNSS No. - 3912 of 2025
 

 
Applicant :- Rajesh Yadav
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Upendra Upadhyay
 
Counsel for Opposite Party :- G.A.,Lokendra Pratap Singh,Suneel
 

 
Hon'ble Vikas Budhwar,J.
 

1. Heard Sri Upendra Upadhyaya, learned counsel for the applicant as well as Sri Vikas Sharma, learned State Law Officer for the State and Sri Ashutosh Pratap Singh Yadav for the opposite party no. 2, and has made a statement at bar that he has filed his memo on 03.05.2025. Office to trace out and place it on record.

2. This application u/s 528 of BNSS has been preferred for quashing the impugned summoning order dated 11.03.2024 passed by the Learned Civil Judge (Jr. Div.)/ Judicial Magistrate, Jalesar, District Etah as well as entire proceeding of Complaint Case No.3640 of 2023 (Nisha Gupta Vs. Rajesh Yadav), Under Section 138 of N.I. Act, Police Station Awagarh, District Etah pending in the court of Learned Civil Judge (Jr. Div.)/Judicial Magistrate, Jalesar, District Etah.

3. A joint statement has been made by the learned counsel for the parties that they do not propose to file any affidavits and the application be decided on the basis of the documents available on record. With the consent of the parties, the application is being decided at the fresh stage.

4. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no. 2 on 07.11.2023 against the applicant under Section 138 of the NI Act with an allegation that with respect to certain assurance for arranging a job etc. the opposite party in question had paid certain amounts and the applicant in turn issued a cheque bearing no. 97822 for an amount of Rs. 8,17,000-/ on 20.08.2023 drawn from Canara Bank which on presentation in the bank stood dishonored on 07.09.2023 a statutory notice was issued on 27.09.2023 which is stated to have been served upon the applicant on 21.10.2023 and on 07.11.2023 the complaint has been lodged thereafter, on 11.03.2024 the summoning order has been passed. Learned counsel for the applicant has submitted that a perusal of the cheque would itself reveal that the same has been drawn by the applicant for Sohit Yadav Enterprises and there is no recital in the complaint that the applicant whole sale in-charge and he was responsible for the conduct of the business of the said firm. He seeks to rely upon the decision of Hon'ble Apex Court in the Case of Ashok Shewakramani and others Vs. State of Andhra Pradesh, Criminal Appeal No. 879 of 2023 decided on 03.08.2023.

5. Further submissions is that as per the complaint itself in para 7 an amount of Rs. 15,000/- stood paid on 28.06.2023, 15,000/- on 18.07.2019 and on 21.11.2020 to the tune of Rs. 50,000/-, thus, in view of Section 56 of the NI Act, the legal and enforceable debt or liability would not be of the amount which has been shown in the cheque as part payments have already been made. He seeks to rely upon Section 56 of the NI Act.

6. Sri Singh who appears for the opposite party no. 2 submits that there is nothing on record to substantiate that the provisions of Section 141 of the NI Act would apply particularly when it is applicable to a company and it is also not a case wherein entity is a company, however, from the perusal of the cheque, it is apparent that it is for Sohit Yadav Enterprises which is a sole proprietorship firm. He further submits that even otherwise Section 56 of the NI Act would not be applicable for the simple reason that the cheque was drawn on 25.08.2023 whereas the payments were made in the year 2019 and 2020, thus, Section 56 would not apply.

7. Sri Vikas Sharma, learned State Law Officer, on the other hand, submits that the summoning order cannot be said to be illegal or suffering from any infirmity particularly when the signatures on the cheque and the issuance of the cheque has not been disputed.

8. I have heard the submissions so made across the bar and perused the record carefully.

9. The sole question which arises for determination at this stage in the present proceeding is the extent of judicial intervention. Apparently, the allegations in the complaint itself show that a cheque for an amount of Rs. 8,17,000/- drawn on 25.08.2023 by the applicant on behalf of firm Sohit Yadav Enterprises have been dishonored. The contention of the learned counsel for the applicant is that the mandatory requirements as contained under Section 141 of the NI Act relatable to a specific recital about the applicant being in-charge of and was responsible to the company for the conduct of business of the company which has not been recited in the complaint.

10. On a pointed query being raised to the learned counsel for the applicant about the status and the nature of the firm, the learned counsel for the applicant submits that it is a partnership firm but there is nothing on record to substantiate the same. Once, there is nothing on record to substantiate that the firm in question is a partnership firm then this Court is to take an adverse view while presuming that the firm in question is a sole proprietorship firm. A decision of this Court in Abhishek Jain Vs. State of U.P. and another, Application u/s 482 No. - 27006 of 2015, para 16 clearly observed as under:-

"16. From the aforesaid observations made by the Apex Court, it is crystal clear that if the cheque is issued in the name of a firm, whether proprietorship or partnership firm, the proprietor or the partner as the case may be, becomes the holder in due course and he can sue in his own name and it is not necessary for him to sue in a trading name, though others can sue such firm in the trading name. Therefore, the instant complaint filed by the opposite party no.2, claiming himself to be a proprietor of the said firm in whose name the said cheque is issued by the applicant herein, in the considered opinion of this Court, complaint is maintainable. Even if the contention of applicant be accepted that the said Raj Rajeshwari Enterprises is a partnership and not a proprietorship firm, it will not help the applicant herein as even the partnership firm does not have a different legal identity and is not a juristic person. Therefore, a partner of the firm also becomes the holder in due course of the cheque within the meaning of Section 142(1) of the N.I. Act. Thus, the complaint even on behalf of the partner of a firm in his own name is maintainable. Otherwise, also in the instant case, the applicant does not dispute that the cheque was issued in the name of the said Raj Rajeshwari Enterprises and the said cheque was dishonoured and demand notice was issued by the opposite party no.2, he has failed to comply with the said notice. Therefore, in view of the presumption under Section 139 of the N.I. Act and as per the law laid down by the Apex Court, this Court does not find any good ground to interfere in the instant case in exercise of jurisdiction under Section 482 Cr.P.C."

11. The judgment so relied upon in the case of Ashok Shewakramani (supra) is of no assistance as the same pertains to a company wherein the principles enumerated in Section 141 of the NI Act stood applied, however, in the present case as per the pleading, the firm is a sole proprietorship firm.

12. Insofar as the second argument is sought to be raised that Section 56 of the NI Act would apply since part payments have been made is concerned and there is no legal enforceable liability or debt, the same is of no help particularly when the entire payments have been made in the year 2019 and 2020, however, the cheque has been drawn in the year 2023.

13. In absence of pointing out any jurisdictional error, this Court is not required to entertain the present application.

14. Accordingly, no interference is made, the application is consigned to record.

Order Date :- 5.5.2025

Rajesh