Court No. - 66

Case :- APPLICATION U/S 482 No. - 30326 of 2022

Applicant :- Ranjeet Kumar Verma

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Shailendra Kumar Singh

Counsel for Opposite Party :- G.A.

Hon'ble Rajeev Misra,J.

1. Heard Mr. Shailendra Kumar Singh, the learned counsel for

applicant and the learned A.G.A. for State.

2. This application under Section 482 Cr.P.C. has been filed

challenging the Summoning Order dated 17.05.2022 passed by

Additional Civil Judge (Junior Division)/ Judicial Magistrate,

Court No.9, Varanasi in Complaint Case No. 1902 of 2021

(Ashok Kumar Singh Vs. Ranjeet Kumar Verma ) under Section

138 N. I. Act, Police Station-Shivpur, District-Varanasi as well

as the entire proceedings of aforementioned complaint case now

pending in the court of Additional Civil Judge (Junior

Division)/ Judicial Magistrate, Court No.9, Varanasi.

3. Learned counsel for applicant submits that cause of action if

any for filing aforementioned complaint case accrued only on

06.03.2021 when the applicant submitted his reply dated

06.03.2021 to the legal notice dated 22.02.2021. As per scheme

of Section 138 N. I. Act, the complaint could have been filed

immediately after expiry of a period of one month form the date

of receipt of legal notice. However, present complaint has been

filed on 02.08.2021 i.e. after expiry of a period of five months

from the date of reply dated 06.03.2021. Referring to the

provisions contained in Section 142 (1) (b) N. I. Act, learned

counsel for applicant submits that aforementioned complaint

filed by opposite party-1 is beyond the period of limitation

same is barred by law. Without considering the aforesaid aspect,

court below erroneously passed the summoning order dated

17.05.2022. He has then invited the attention of Court to the

provisions contained in Section 138 N. I. Act and on basis

thereof, he submits that the disputed cheque was not encashed

on the ground that the payment was topped by the drawer. Stop

payment is not a circumstance covered under Section 138 N. I.

Act. He therefore submits that in view of above, no proceedings

under Section 138 N.I. Act could have been undertaken. To

buttress his submission, he has placed reliance upon the

judgement of Apex Court in Raj Kumar Khurana vs State Of

(NCT Of Delhi) & Anr reported in (2009) 6 SCC 72. On the

above premise, the learned counsel for applicant submits that

aforementioned proceedings being illegal, cannot be sustained

and therefore, liable to be quashed by this Court.

4. Per contra, the learned A.G.A. for State has opposed this

application. He submits that the provisions contained in

Section 142 (1) (b) of N. I. Act only provide that complaint

should be filed immediately after expiry of a period of one

month from the date of receipt of notice issued to the defaulter.

However, there is no stipulation in the N. I. Act that no

application under Section 138 N. I. Act can filed after the

expiry of a period of one month. In short, the submission is that

the court concerned in exercise of it's discretion can entertain a

complaint under Section 138 N. I. Act even after expiry of a

period of one month. As such the complaint filed by opposite

party-2 beyond the period of one month is maintainable. It is

then contended that court below has exercised its desecration in

favour of opposite party-2. By no stretch of imagination, it can

be said that exercise of desecration by court below in favour of

opposite party-2 is perverse or illegal. Learned A.G.A. further

submits that submission urged by learned counsel for applicant

that since stop payment is not a circumstance covered under

Section 138 N.I. Act and therefore not covered under Section

138 N. I. Act is misconceived. The controversy stands settled by

a Three Judges Constitution Bench of Apex Court in M/S Modi

Cements Ltd. Vs. Shri Kuchil Kumar Nandi, (1998) 3SCC

249. Ratio laid down in aforesaid judgement has bee