Jitendra Yadav, And Another vs State Of U.P. Thru. Prin. Secy. Home Lko. ...
2025 Latest Caselaw 12333 ALL

Allahabad High Court

Jitendra Yadav, And Another vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 11 November, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:71608
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW 
 
APPLICATION U/S 482 No. - 9816 of 2024   
 
   Jitendra Yadav, And Another    
 
  .....Applicant(s)   
 
 Versus  
 
   State Of U.P. Thru. Prin. Secy. Home Lko. And Another    
 
  .....Opposite Party(s)       
 
   
 
  
 
Counsel for Applicant(s)   
 
:   
 
Abhishek Srivastava, Surendra Singh   
 
  
 
Counsel for Opposite Party(s)   
 
:   
 
G.A., Jitendra Kumar Verma, Ravindra Kumar Katiyar   
 
     
 
 Court No. - 16
 
   
 
 HON'BLE BRIJ RAJ SINGH, J.      

1. Head learned counsel for the applicants as well as the learned counsel for the opposite party No. 2.

2. The applicants herein prays for the following reliefs:

?....... that for the facts reasons and circumstances mentioned in the accompanying affidavit, the Hon'ble Court may kindly be pleased to quash the impugned criminal proceedings of Complaint No. 55784/2021; Vivek Kumar Vs. Jitendra Yadav & Anr. U/s 138 N. I. Act, 1881 P. S. Krishna Nagar, Lucknow pending in the Ld. Additional Court No. 1, Lucknow as well as impugned order date 23-05-2022 passed by Ld. Addl. Court No. 1, Lucknow passed in Complaint No. 55784/2021; Vivek Kumar Vs. Jitendra Yadav & Anr. U/s 138 N. I. Act, 1881 P. S. Krishna Nagar, Lucknow in the interest of justice.

Any other order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case may also be passed in favor of the petitioner.?

3. It is case of the applicants that the applicants had issued Cheque No. 000499 of Rs. 3 lacs in favour of opposite party No. 2 on 16.02.2021 pertaining of ICICI Bank, Telibagh, Lucknow. This cheque was produced in the Bank within the prescribed limit on 19.02.2021, but the same was returned unrealized on 02.03.2021 mentioning the reason 'Payment stopped by Drawer.'. The same cheque was again submitted before the Bank second time on 01.05.2021, but it was again returned with the aforesaid reason that 'Payment stopped by Drawer.'. The, a demand notice was given on 08.05.2021, which was served in the office on 07.05.2021. Thereafter, complaint in question was filed by opposite party No. 2, wherein after recording statements of the complainant and going through the record summon has been issued, which is under challenged in this application under Section 482.

4. Learned counsel for the applicants has taken sole ground that the cheque is pertaining to Rs. 3 lacs only, whereas the demand notice indicates that demand has been made for Rs. 4 lacs. He has submitted that the notice is illegal, being not in conformity with Section 138, Proviso (b) of the Negotiable Instrument Act 1881. In support of his submission, learned counsel for the applicants has placed reliance on the judgments of Hon'ble the Supreme court in the case of Upasana Mishra v. Trek Technology India Pvt. Ltd., 2023 SCC Online SC 1740 (para- 6), which reads as under:

?6. A bare perusal of the decision referred (supra) would reveal that a demand in addition to the cheque amount in a demand notice by itself would not make it invalid. In other words, as held therein, in the demand notice, demand has to be made for the 'cheque amount' and therefore, notice sans such demand would fall short of legal requirement. At the same time, we will reiterate the position that if in a notice while giving the break up of the claim the cheque amount interest, damages, etc. are separately specified and these additional claims would be severable, such demand would not invalidate the notice. In short, in a notice of demand made under the N.I. Act demand shall not be omnibus, there must be a clear demand for the cheque amount lest notice will be invalid. This law laid down as above has to be applied to decide the validity or otherwise of Annexure P-2-demand notice.?

5. The learned counsel has also placed reliance on the order passed by Hon'ble the Supreme Court in the case of Suman Sethi v. Ajay K. Churiwal & anr., (200) 2 SCC 380 (Para-6), which reads as under:

?6. We have to ascertain the meaning of the words the "said amount of money" occurring in clauses (b) and (c) to the proviso to Section 138. Reading the section as a whole we have no hesitation to hold that the above expression refers to the words "payment of any amount of money" occurring in the main Section 138 i.e. the cheque amount. So in a notice, under clause (b) to the proviso, demand has to be made for the cheque amount. Dr Dhavan, learned Senior Counsel has urged that Section 138 being a penal provision has to be construed strictly. We may refer to the decision of this Court in M. Narayanan Nambiar v. State of Kerala, AIR 1963 SC 1116. This Court considered the rule of construction of a penal provision and quoted with approval the following passage of the decision of the Judicial Committee in Dyke v. Elliott, (1872) 4 PC 184. The passage runs as follows:

"No doubt all penal statutes are to be construed strictly, that is to say, the court must see that the thing charged as an offence is within the plain meaning of the words used and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair commonsense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument."?

6. The learned counsel for the applicants has also placed reliance on a judgment of Hon'ble the Supreme Court in the case of Rahul Builders v. Arihant Fertilizers & Chemicals & anr., (2008) 2 SCC 321 (Para- 8), which reads as under:-

?8. Section 138 does not speak of a 15 days' notice. It contemplates service of notice and payment of the amount of cheque within 15 days from the date of receipt thereof. When the statute prescribes for service of notice specifying a particular period, it should be expressly stated. In absence of any such stipulation, it is difficult to hold that 15 days' notice was thereby contemplated. The High Court, therefore, was not correct in arriving at the aforementioned finding.?

7. After placing reliance on the judgments, cited above, it has been submitted by the learned counsel for the applicants that in view of the law settled by Hon'ble the Supreme Court the demand notice is illegal, therefore, the entire complaint is liable to be quashed.

8. On the other hand, learned counsel for the opposite party No. 2 has submitted that though notice dated 07.05.2021 indicates the dishonour of cheque of Rs. 3 lacs has been stated in para-1 and Rs. 4 lacs has been demanded, but the notice will not be illegal in view of the fact that the dishonoured cheque is pertaining to Rs. 3 lacs. He has further invited attention of the court towards the cheque, which was dishonoured, i.e. Annexure No. 2, and has submitted that once the dishonoured cheque is available on record, the court below applied its mind and issued summons and there is no illegality, infirmity in the order passed by the court below.

9. The Hon'ble Supreme Court in the case of Suman Sethi (supra) has held that a notice is to be read as a whole. If the notice demand has to be made for the amount, i.e. cheque amount and if no such demand is made, the notice no doubt, fall short of legal requirement. If in notice while giving the break-up of the claim, the cheqe amount, interest, damages etc. are separately specified, other such claims of interest etc. would be superfluous and, these additional claims would be severely and will not invalidate the notice. It has been observed by the Hon'ble Supreme Court that in a notice omnibus demand is made without specifying what is due under the dischonoured cheque, the notice might well fail to meet the legal requirement and may be regarded as bad.

10. The Supreme Court has observed in aforesaid judgments that in a notice of demand made under Negotiable Instrument Act 1988 demand shall not be omnibus. There must be a clear demand for the cheque amount, lest notice will be invalid. The legal notice given by opposite party No. 2 does not fullfil the requirement, as envisaged under Section 138 of Negotiable Instrument Act 1981, therefore, notice is invalid. The submission made on behalf of applicants has force. The application is liable to be allowed. The application is accordingly allowed. Order date 23-05-2022 passed by Ld. Addl. Court No. 1, Lucknow in Complaint No. 55784/2021; Vivek Kumar Vs. Jitendra Yadav & Anr. U/s 138 N. I. Act, 1881 P. S. Krishna Nagar, Lucknow, issuing summons, as also the Complaint No. 55784/2021, aforesaid, are hereby quashed.

11. However, It is open for the opposite party No. 2 to institute a suit for recovery of amount or any other legal remedy, as permissible under law.

(Brij Raj Singh,J.)

November 11, 2025

A.Nigam