Vinod Kumar vs State Of Uttar Pradesh Through ...
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Allahabad High Court

Vinod Kumar vs State Of Uttar Pradesh Through ... on 16 October, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:186254
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
APPLICATION U/S 528 BNSS No. - 42161 of 2024   
 
   Vinod Kumar    
 
  .....Applicant(s)   
 
 Versus  
 
   State Of Uttar Pradesh Through Secretary, Dept. Of Home Govt. Of Up And 2 Others    
 
  .....Opposite Party(s)       
 
   
 
  
 
Counsel for Applicant(s)   
 
:   
 
Aravind Kumar Tripathi   
 
  
 
Counsel for Opposite Party(s)   
 
:   
 
Arun Kumar Sharma, G.A.   
 
     
 
 Court No. - 76
 
   
 
 HON'BLE VIKRAM D. CHAUHAN, J.      

1. Heard learned counsel for the applicant and learned AGA for the State.

2. This application has been filed by the applicant for quashing the entire proceedings arising out of Complaint Case No. 425 of 2018 (P.K. Tour & Travels Vs. Vinod Kumar), under Section 138 of the Negotiable Instruments Act, 1881, pending before the court of Special Judicial Magistrate, Mainpuri, including the summoning order dated 26.07.2018.

3. Learned counsel for the applicant submits that previously applicant had filed application challenging the summoning order bearing Application under Section 482 Cr.P.C. No. 43625 of 2023. By means of the aforesaid application under Section 482 Cr.P.C., decided by judgment dated 29.11.2023, this Court declined to interfere in exercising inherent powers under Section 482 Cr.P.C. Thereafter, the applicant went to the Supreme Court by means of Petition(s) for Special Leave to Appeal (Crl.) No(s). 192 of 2024 (Vinod Kumar Vs. State of U.P. and Anr.), however, the Supreme Court declined to interfere in the order passed by the High Court. Now, the petition is filed on a new ground challenging the summoning order that the cheque was never presented before the bank. Learned counsel for the applicant further submits that cheque in question was never presented came to the knowledge of the applicant after completion of earlier round of litigation. It is further submitted by learned counsel for the applicant that when the cheque itself has not been presented, then provisions of Section 138 of Negotiable Instruments Act could not be applicable.

4. Sri Arun Kumar Sharma, learned counsel for opposite party no. 2 has opposed the prayer and submits that once in the earlier round of litigation the summoning order has been upheld, then the applicant could not re-agitate the summoning order by filing the present application and all the issues are required to be decided by the trial court. Learned counsel for opposite party no. 2 further submits that in the present matter summoning order was issued in the year 2018, however, the applicant has not appeared before the court concerned since 2018 for last more than seven years and avoiding the trial court proceedings despite the summoning order being upheld by this Court.

5. It is to be seen that in the present case earlier the summoning order was challenged by the applicant before this Court by means of Application under Section 482 Cr.P.C. No. 43625 of 2023 and this Court passed the following order on 29.11.2023 :-

"Applicant being accused has approached this Court through this application under Section 482 Code of Criminal Procedure seeking quashing of the Complaint Case No.425 of 2018, titled P.K. Tour & Travels Vs. Vinod Kumar, pending in the court of Special Judicial Magistrate, Mainpuri, under Section 138 of Negotiable Instruments Act, 1881, Police Station Kotwali, District Mainpuri, as well as the summoning order dated 26.07.2018 and proceedings arising out of it including the issuance of non- bailable warrants issued by the trial court to secure his presence.

Learned counsel submits that indeed the cheque in question was given by the applicant to the complainant but the same was not given for discharging any liability and was only a security against a financial help which was to be received from the complainant. He submits that the complainant did not advance any loan to the accused, but he presented the cheque for clearance and upon dishonour, the impugned complaint has been filed. He submits that the impugned complaint is misuse of the process of law as the complainant has betrayed the trust of his friend.

Learned counsel next submits that there is material discrepancy in claim set up by the complainant as according to him the cheque amount was a liability incurred by the accused for having utilized the taxi provided by complainant over a period of two years but while referring to the statutory notice it is pointed out that this amount was accumulated within a period of three years. Learned counsel prays that the prosecution launched by him may be quashed, in the interest of justice.

During the course of hearing, it is not disputed by the learned counsel that the statutory notice issued by the complainant was responded to by filing a reply dated 28th February, 2018, wherein the applicant specifically mentioned that the Cheque Number 856862 dated 3rd February, 2018 was given to the complainant as security. However, according to learned counsel the cheque was presented by the complainant on the same date and while handing over the cheque, the loan as agreed by complainant, was not given to the accused.

After hearing the learned counsel and considering his submissions, this Court finds that the entire case instituted by the accused is based upon his defence. Since the instrument in question which is the subject of this complaint carries a presumption that the cheque was issued by the accused towards discharge of his liability, therefore, the ground set up by the accused seeking quashing of the impugned complaint and the proceedings cannot be appreciated in the absence of any evidence on record.

Further, it would not be appropriate for this Court to comment upon the defence set up by the accused as complainant is yet to be cross- examined. Therefore, this Court does not find it to be a fit case for exercise of inherent powers under Section 482 Cr.P.C.

At this stage, learned counsel submits that alternatively the applicant be granted concession of bail as the Court has issued non- bailable warrants against him to secure his presence.

Upon considering the second submission, this Court does not find any reason to entertain it in the absence of any effort by the applicant to join the proceedings pending before the trial court for a long time after issuance of process on 26th July, 2018. The applicant is diligent enough to respond to the statutory notice by complainant, therefore, it cannot be believed that he did not acquire the knowledge of the pendency of the complaint and the issuance of summons by the trial court time and again. Since he failed to appear, so in these compelling circumstances non- bailable warrants were issued against him. Even if, it is assumed that he was prevented by sufficient reason or was not aware of it, alternatively he can raise this issue before the trial court.

This application is dismissed."

6. The applicant being aggrieved by the aforesaid order approached the Supreme Court by means of Petition(s) for Special Leave to Appeal (Crl.) No(s). 192 of 2024 (Vinod Kumar Vs. State of U.P. and Anr.) wherein the Supreme Court declined to interfere in the order passed by the High Court by order dated 12.1.2024, which is quoted hereinbelow :-

"1. We are not inclined to interfere with the impugned judgment and order passed by the High Court. The special leave petition is, accordingly, dismissed.

2. Pending application(s), if any, shall stand disposed of."

7. The applicant now has come up with a case that cheque was never presented before the bank for clearance and as such the provisions of Section 138 of Negotiable Instruments Act could not be applicable.

8. It is to be seen that perusal of the complaint would go to show that in paragraph nos. 5 and 6 of the complaint the cheque was presented at the Vijaya Bank, Branch Mainpuri, however, the same was dishonoured and dishonoured cheque was received on 9.2.2018. The issue raised by the applicant is a question of fact as in the complaint the complainant has alleged that cheque was dishonoured. Once the complainant has made a statement then the aforesaid issue will require to be decided at the trial court proceedings where the parties would be given an opportunity to leave evidence. It is for the applicant to raise his defence before the trial court in respect of the aforesaid issue raised by the applicant before this Court. This Court cannot hold a mini trial at this stage, more particularly, when the summoning order has been issued in the year 2018 and in the first round of litigation the summoning order has been upheld.

9. Considering the fact that applicant has not appeared before the trial court which has not been disputed by learned counsel for the applicant, is indicative of the fact that applicant is trying to delay the trial court proceedings.

10. Be that as it may, in view of the above mentioned facts and circumstances, this Court declined to interfere in the summoning order dated 26.7.2018 with liberty to the applicant to raise the aforesaid issue before the trial court. In the event the aforesaid issue is raised by the applicant before the trial court, the trial court will decide the same in accordance with law.

11. Since the criminal proceedings are pending before the trial court from the year 2018 and the present matter arises out of Negotiable Instruments Act, the trial court is directed to complete the trial court proceedings within a period of six months from the date of production of certified copy of this order without giving any adjournment to any of the parties.

12. In the event any non-bailable warrant or coercive action is taken against the applicant, the police authorities will be obliged under law to take immediate action in accordance with law.

13. With the aforesaid observation/direction, the application under Section 528 BNSS is disposed of.

(Vikram D. Chauhan,J.)

October 16, 2025

VMA