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Allahabad High Court
Neeraj Kumar Mishra vs State Of U.P. And Another on 2 April, 2026
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:70688
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 482 No. - 36788 of 2023
Neeraj Kumar Mishra
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Bhuvnesh Kumar Singh, Hariom Mishra
Counsel for Opposite Party(s)
:
G.A., Mohammad Abid Ali
Court No. - 75
HON'BLE SAMIT GOPAL, J.
1. List revised.
2. Heard Sri Bhuvnesh Kumar Singh, learned counsel for the applicant, Sri Mohammad Abid Ali, learned counsel for the opposite party no. 2, Sri Triveni Saran Rai, learned counsel for the State and perused the records.
3. The present application under Section 482 Cr.P.C. has been filed by the applicant Neeraj Kumar Mishra, with the prayers to quash the entire proceedings of Complaint Case No. 865 of 2018 (Mohd. Aslam Vs. Neeraj Kumar Mishra) under Section 138 of N.I. Act, P.S. Manjhanpur, District Kaushambi, pending before ACJM, Kaushambi as well as to quash the impugned summoning order dated 13.08.2019 with its all consequential effects passed by ACJM, Kaushambi and with a further prayer to stay the further proceedings of the aforesaid case, during the pendency of the present application.
4. Counter affidavit dated 09.01.2024 duly served on learned counsel for the applicant on 31.01.2024 is on record.
5. Today learned counsel for the applicant prays for two weeks time to file rejoinder affidavit to the same. Counter affidavit has been served on learned counsel for the applicant around two years back but till date no rejoinder affidavit has been filed to the same. The opportunity to file rejoinder affidavit is closed. His prayer for seeking time to file rejoinder affidavit is not accepted and rejected. The Court thus proceeds to hear the matter on the principle of non traverse.
6. The facts of the case are that a complaint dated 27.08.2018 under Section 138 of Negotiable Instrument Act was filed by the opposite party no.2/Mohd. Aslam against the applicant Neeraj Kumar Mishra alleging therein that with reference to business and by falsely misrepresenting him, the accused took Rs. 15 lakh from him but did not return it. He even did not make him as a partner in his business. On asking for return of the money he used to make excuses. After asking for return of many times, he gave a cheque of Rs. 10 lakh dated 15.04.2018 bearing No. 00821 of ICICI Bank, T.P. Nagar, Allahabad Branch. The said cheque was presented in the State Bank of India, Karari Kaushambi in the bank account of complainant from where he came to know that it has been dishounered due to insufficient fund. He then talked to the accused respondent who again started making excuses for returning of Rs. 15 lakh. Due to the same, he became mentally disturbed and went under depression and was being treated for it in which around Rs. 10 lakh was spent due to non returning of Rs. 15 lakh. The complainant has suffered irreparable loss. He has a belief that the accused respondent has an an ill intention and has misappropriated his money. The case falls under Section 138 of N.I. Act and thus he has no other option but to file a complaint. The accused be summoned and be punished and orders be passed for returning of the money along with interest. The statement of the complainant under Section 200 Cr.P.C. on affidavit dated 18.07.2019 was filed in which he reiterated the version of the complaint. The Court of the Additional Chief Judicial Magistrate, Kaushambi vide order dated 13.08.2019 summoned the accused applicant Neeraj Kumar Mishra for offence under Section 138 of the N.I. Act. The present application under Section 482 Cr.P.C. has thus been filed before this Court with the aforesaid prayers.
7. The submission of learned counsel for the applicant is as under:
(i) The cheque in question is of a private limited company named Prabhoot Contractors Pvt. Ltd. but the said company has not made as accused in the complaint. Reliance has been placed on the judgment of the Apex Court in the case of Aneeta Hada Vs. M/s Godfather Travels and Tours Pvt. Ltd : 2012 (77) ACC 924 and Himanshu Vs. B. Shivamurthy and another : 2019 (3) SCC 797 to submit that the company has not been made as an accused in the matter.
(ii) There is no reference whatsoever regarding any notice of demand being sent to the applicant by the complainant and further that the said notice has been served and then the complaint is being filed which would thus give a cause of action to the complainant to prefer the complaint.
(iii) Reliance has been placed on the judgment of the Apex Court in the case of Shakti Travel & Tours Vs. State of Bihar : (2002) 9 SCC 415 by submitting that the foundation of any complaint under Section 138 of the N.I. Act lies in a properly served legal notice which is not a mere formality but gives an opportunity to make payment before facing prosecution.
(iv) The proceedings thus are clearly abuse of process of Court and deserve to be quashed.
8. Learned counsel for the opposite party no.2/complainant submitted as under:
(i) Although in the complaint and in the statement of the complainant under Section 200 Cr.P.C. there is no reference whatsoever of sending of any notice of demand and its service but a notice dated 08.08.2018 was sent by registered post to the accused, copy of the said notice and receipt of post is annexed as annexure C.A.1 to the counter affidavit dated 09.01.2024.
(ii) The cheque of the accused has been dishonoured and the trial court concerned has summoned the accused after going through the records which has no irregularity or illegality.
9. Learned counsel for the State has also opposed the prayer for quashing.
10. After having heard learned counsels for the parties and perusing the records, it is evident that the cheque as was presented for encasement was of Prabhoot Contractors Pvt. Ltd.. The company has not been made as accused. There is no averment in the complaint or in the statement of the complainant under Section 200 Cr.P.C. as to how the applicant accused was incharge and responsible of the company and thus was responsible for the cheque. Further the complaint is silent regarding the date on which the said cheque was presented for encasement, the date on which it was dishonoured, sending of any notice upon the accused and even service of the same, the same are important prerequisite in a matter under Section 138 of N.I. Act. The Court proceedings thus are abuse of process of Court.
11. In view of the same, looking to the facts and circumstances of the case as above, the present application is allowed.
12. The entire proceeding as well as impugned summoning order dated 13.08.2019 of the aforesaid case are hereby quashed.
13. Pending application(s), if any, stand disposed of.
(Samit Gopal,J.)
April 2, 2026
M. ARIF
