Qamar Alam vs State Of U.P. Thru. Addl. Chief Secy. ...
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Allahabad High Court

Qamar Alam vs State Of U.P. Thru. Addl. Chief Secy. ... on 12 November, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:71762
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW 
 
APPLICATION U/S 482 No. - 9170 of 2025   
 
   Qamar Alam    
 
  .....Applicant(s)   
 
 Versus  
 
   State Of U.P. Thru. Addl. Chief Secy. Home Lko. And Another    
 
  .....Opposite Party(s)       
 
   
 
  
 
Counsel for Applicant(s)   
 
:   
 
Mohammad Ehtesham Khan, Abha Singh   
 
  
 
Counsel for Opposite Party(s)   
 
:   
 
G.A.   
 
     
 
  Reserved on 04.11.2025 Delivered on 12.11.2025    
 
 HON'BLE BRIJ RAJ SINGH, J.      

1. The present application has been filed with a prayer for setting aside the order dated 04.10.2025 passed by the Special Judge, SC/ST Act, Ambedkar Nagar in Criminal Revision No.95 of 2022, Qamar Alam Vs. State of U.P. and others, as well as the order dated 09.02.2017 passed by the Chief Judicial Magistrate, Ambedkar Nagar in Complaint Case No.3777 of 2015, Harish Chandra Pathak Vs. Qamar Alam, with further prayer for quashing of the entire proceedings of the aforesaid complaint case.

2. Supplementary affidavit filed in the Court is taken on record.

3. Since the application is being heard and decided at the admission stage, therefore, issuance of notice to opposite party no.2 is dispensed with.

4. Brief facts of the case giving rise to the present dispute are that by way of sale consideration in respect of the sale deed dated 08.05.2015, three cheques were given by the applicant to opposite party no.2 viz. (i) Cheque No.574628 dated 15.06.2015 for Rs.5,00,000/- (ii) Cheque No.574629 dated 15.08.2015 for Rs.10,00,000/- (iii) Cheque No.574630 dated 30.08.2015 for Rs.10,00,000/- drawn in the name of Kshetriya Gandhi Ashram, Akbarpur. Cheque No.574628 dated 15.06.2015 for Rs.5,00,000/- was honoured and the amount was credited in the account of the Kshetriya Gandhi Ashram. Thereafter, Cheque No.574629 dated 15.08.2015 was placed by opposite party no.2 in the bank, but the same was dis-honoured due to insufficient funds and a legal notice in respect thereof was sent by opposite party no.2 to the applicant on 30.09.2015. The aforesaid cheque was again placed in the bank and the same was dis-honoured on 01.10.2015 on the ground of stop payment. A legal notice was sent by opposite party no.2 on 09.10.2015. Thereafter, Complaint Case No.3777 of 2015 was filed by Harish Chandra Pathak, Secretary of the Kshetriya Gandhi Ashram, Akbarpur under Section 138 of Negotiable Instruments Act, 1881 (for short ?Act, 1881?) before the Chief Judicial Magistrate, Ambedkar Nagar on 03.12.2015. The complainant has also filed his affidavit in support of the complaint in compliance of Section 202 Cr.P.C.

5. It is mentioned in the supplementary affidavit that opposite party no.2 had earlier filed Complaint Case No.232 of 2015, Harish Chandra Pathak Vs. Qamar Alam, under Section 138 of the Act, 1881 on 03.10.2015 before the Judicial Magistrate-III, Faizabad. Judicial Magistrate-III, Faizabad passed an order on 27.11.2025 that since he has no jurisdiction to try the case, therefore, the case file is returned under Section 142A(1) of the Act, 1881 with a direction to the complainant to file a complaint before the competent court within thirty days from that date i.e. 27.11.2015. Thereafter, Complaint Case No.3777 of 2015 was filed by the complainant before the Chief Judicial Magistrate, Ambedkar Nagar on 03.12.2015 and the applicant has been summoned.

6. Sri M.E. Khan, learned counsel for the applicant has submitted that the complaint has been filed by Harish Chandra Patahk and the Kshetriya Gandhi Ashram, Akbarpur has not been made as complainant, therefore, the complaint is liable to be dismissed. He has further submitted that Original Suit No.295 of 2017 was filed by the Kshetriya Gandhi Ashram, Akbarpur against the applicant for cancellation of the sale deed. It is also submitted that the land in question is a disputed property, for which civil litigation is pending between the Kshetriya Gandhi Ashram, Akbarpur and the land owner, but the same was sold to the applicant by way of misrepresentation.

7. Learned counsel for the applicant has further submitted that in the prayer clause of the complaint, it is mentioned that Cheque No.574630 is dis-honoured, whereas Cheque No.574629 is dis-honoured; thus, the complaint is not maintainable due to wrong mentioning of the cheque number. It has been further submitted that the cheque was dis-honoured on 03.10.2015 and the legal notice was sent to the applicant on 09.10.2015. Complaint No.232 of 2015 was filed before the Judicial Magistrate-III, Faizabad, which was withdrawn on 27.11.2015 and thereafter the present complaint was filed on 03.12.2015 before the competent court i.e. Chief Judicial Magistrate, Ambedkar Nagar, which is time barred. It has been further submitted that the complaint was filed later on before the Chief Judicial Magistrate, Ambedkar Nagar on 03.12.2015, whereas the legal notice was given to the applicant on 09.10.2015, therefore, it is beyond time.

8. On the other hand, Sri Rao Narendra Singh, learned AGA-I appearing for State-opposite party no.1 has submitted that since the complaint has been filed in pursuance of the order of the Judicial Magistrate-III, Faizabad, therefore, it cannot be said that the complaint is barred by limitation. He has further submitted that the complaint has been filed by Harish Chandra Pathak on the representative capacity of the Kshetriya Gandhi Ashram, Akbarpur being Secretary of the said Ashram and not in his individual capacity, therefore, the complaint is maintainable. It is also submitted that since the complaint is maintainable, the trial court has rightly summoned the applicant after applying its mind in a correct perspective, therefore, no interference is required by this Court.

9. I have heard learned counsel for the applicant as well as learned AGA appearing for State-opposite party no.1 and perused the record.

10. It is relevant to mention here that legal notice was refused on 03.10.2015 and the same was received back with an endorsement of refusal. Thereafter, Complaint Case No.232 of 2015 was filed on 30.10.215 before the Judicial Magistrate-III, Faizabad. However, the same was withdrawn vide order dated 27.11.2015 by observing that since the court has no jurisdiction, therefore, the case file is returned with a direction to the complainant to file a complaint before the competent court within thirty days from that date. In pursuance of the aforesaid direction, the present complaint was filed on 03.12.2015 in conformity with the provisions of Section 142A(1) of the Act, 1881. For ready reference, Section 142A of the Act, 1881 is quoted below:-

?142A. Validation for transfer of pending cases.?(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgment, decree, order or direction of any court, all cases transferred to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015 (Ord. 6 of 2015), shall be deemed to have been transferred under this Act, as if that sub-section had been in force at all material times.

(2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub-section (1) and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court.

(3) ????????????...?

11. After perusal of the aforesaid provisions of Section 142A(1) of the Act, 1881, it is clear that the complaint has been filed within time as the Judicial Magistrate-III, Faizabad had already passed an order for withdrawal of the earlier complaint on 27.11.2015 with the direction that the complainant may prefer a fresh complaint before the competent court within thirty days from that date and in pursuance of the said direction, the complainant filed the complaint on 03.12.2015 before the Chief Judicial Magistrate, Ambedkar Nagar; thus, the argument of learned counsel for the applicant has no legs to stand and the complaint is treated to have been filed within time.

12. It has been submitted by the learned counsel for the applicant that Kshetriya Gandhi Ashram, Akbarpur has not filed the complaint, rather Sri Harish Chandra Pathak, the then Secretary of the Kshetriya Gandhi Ashram, Akbapur has filed the complaint, therefore, the complaint is not maintainable.

13. I have considered the submission and it is important to note here that Sri Harish Chandra Pathak has filed the complaint in the representative capacity of the Kshetriya Gandhi Ashram, Akbapur as he was working as Secretary of the Kshetriya Gandhi Ashram and not in his individual capacity, therefore, it cannot be said that the complaint is not maintainable.

14. The aforesaid question has been cropped up before the Hon?ble Supreme Court in the cases of Dhanasingh Prabhu Vs. Chandrasekar and another, (2025) SCC OnLine SC 1419 and Sankar Padam Thapa Vs. Vijaykumar Dineshchandra Agarwal, (2025) SCC OnLine SC 2194. Hon?ble supreme Court in Paragraphs 23, 25, 26 and 27 of Sankar Padam Thapa?s case (supra) held as under:-

?23. To our mind, the above-extracted Sections of the Trusts Act would also favour the view we are taking, as the obligation to ?maintain and defend? suits is placed on the shoulders of a Trustee and not the Trust itself. It is clear that only a Trustee has the obligation to file, maintain and defend any suit on behalf of the Trust. Meaning thereby, that a Trust does not have a separate legal existence of its own, making it incapable of suing or being sued. A learned Single Judge of the Kerala High Court, relying on Pratibha Praisthan (supra), in K.P. Shibu (supra), noted:

?16. Thus, it is clear from the above provisions that all the trustees are the owners of the property, but they are obliged to use the same in a particular manner. If a number of trustees exist, they are the joint owners of the property. The trustees are bound to maintain and defend all suits, for the preservation of the trust-property and the assertion or protection of the title thereto. Thus, it appears that the ?Trust? is not capable of suing and being sued in a court of law, even though the trustees can maintain and defend suits for the preservation and protection of the trust-property. Therefore, a ?Trust? is not a juristic person or a legal entity, as the juristic person has a legal existence of its own and hence it is capable of suing and being sued in a court of law. Thus, it appears that a ?Trust? is not like a body corporate, which has a legal existence of its own and therefore can appoint an agent. The above discussion would make it clear that a ?Trust? is not a body corporate.? (emphasis supplied).

25. We find substance in the reasoning assigned by the High Courts of Kerala, Delhi, Madras, Gujarat, Calcutta and Karnataka that a Trust is not a ?legal entity? or ?juristic person?. A Trust is also not like a corporation which has a legal existence of its own and therefore can appoint an agent. A Trust operates through its Trustees, who are legal entities. We may gainfully refer to the decision of the Kerala High Court in K.R. Rajan (supra), where the said Court has rightly held:

?7. The legal status of a trust, is thus well discernible. Trust not being a legal person, and the Code of Civil Procedure providing any enabling provision for the Trust to sue or for being sued in its name, there is no merit in the contention that the Trust is to be arrayed as a co-nominee party. The arraying of the trust in its own name is otiose or redundant. It is the trustees who are to be impleaded to represent the trust. Therefore, the contention of the petitioner on the ground of non-joinder, also fails.? (emphasis supplied)

26. Ergo, it is clear that though a Trust may act or even be treated as an entity for certain legal purposes and not all legal purposes, a Trust is an obligation imposed on the ostensible owner of the property to use the same for a particular object - for the benefit of a named beneficiary or charity, and it is the Trustee(s) who are bound to maintain and defend all suits and to take such other steps with regard to the nature, land or the value of the Trust property, that may be reasonably required for the preservation of the Trust property, and the assertion of protection of title thereto, subject to the provisions of the instructions of Trust to take such other steps.

27. There exists no ambiguity about there being no legal requirement for a Trust to be made a party in a proceeding before a Court of Law since it is only a/the Trustee(s) who are liable and answerable for acts done or alleged to have been done for and on behalf of the said Trust. From a perusal of Orion?s Deed of Trust, of which the Respondent is the Chairman/Authorized Signatory, it emerges clearly that the relevant clauses deal with the Trustee insofar as administering and holding the funds and properties of the Trust are concerned. Which is to say that the Trust (i.e., Orion) operates only through the Trustee(s) and that the objects thereof were for charitable purposes. The Deed of Trust also provides for permitting one or more Trustees to operate a bank account. It becomes all the more apparent that it is the Trustees alone, through whom the Trust funds/property(ies) are managed and dealt with. The Trust itself is without any independent legal status.?

15. It has been observed in the case of Sankar Padam Thapa (supra) that for the benefit of a named beneficiary or charity, it is the Trustee(s) who are bound to maintain and defend all suits and to take such other steps with regard to the nature, land or the value of the Trust property. A Trust is also not like a corporation which has a legal existence of its own and, therefore, can appoint an agent and it operates through its Trustees, who are legal entities. There is no legal requirement for a Trust to be made a party in a proceeding before a Court of Law since it is only the Trustees, who are liable and answerable for acts done or alleged to have been done for and on behalf of the said Trust. Thus, in view of the law settled by the Supreme Court in the aforesaid case, it is held that the complaint filed by Harish Chandra Pathak, the then Secretary of the Kshetriya Gandhi Ashram, Akbarpur is maintainable.

16. So far the argument of counsel for the applicant regarding wrong mentioning of cheque number in the prayer clause is concerned, the same is to be analysed by this Court. Paragraph-2 of the complaint indices that Cheque No.574629 is said to be dis-honoured, but in the prayer clause, Cheque No.574630 is mentioned. Copy of the cheque, which is placed on record by the counsel for the applicant and is said to have been dis-honoured, itself indicates its number as 574629. That apart, pleadings of the complaint as well as the legal notice dated 09.10.2015 and the dis-honoured cheque themselves indicate the cheque number as 574629. Therefore, if any typing mistake occurred in the prayer clause with regard to number of the cheque, that cannot be a ground for quashing the complaint more particularly if in other documents, the correct cheque number has been mentioned. Therefore, the argument of counsel for the applicant in this regard also falls to the ground.

17. Considering the arguments advanced by counsel for the parties and the evidence on record, this Court is of the opinion that the trial court has rightly entertained the complaint and issued summons against the applicant. Therefore, no interference is required by this Court in exercise of its extraordinary jurisdiction under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023.

18. Application is devoid of merit. It is accordingly rejected. Interim order granted on 04.11.2025 is vacated.

(Brij Raj Singh,J.)

November 12, 2025

Rao/-