2025:UHC:5173 HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application U/s 482 No. 516 of 2024 19th June, 2025 Amit Kumar and others ……….Applicants Versus State of Uttarakhand and another ………Respondents ---------------------------------------------------------------------- Presence:- Mr. C.K. Sharma and Mr. Nitin Tewari, Advocates for the applicants. Mr. Vikas Uniyal, B.H. for the State. There is no representation for respondent no.2, despite personal service. ---------------------------------------------------------------------- Hon'ble Pankaj Purohit, J. This petition preferred under Section 482 Cr.P.C. is directed against the cognizance/summoning order dated 07.09.2022 in Criminal Case No.451 of 2022, Nasmashkarji Aahar Kendra Vs. M/s S.K. Corbett Kings and others, under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act, 1881”), passed by learned Additional Chief Judicial Magistrate, Ramnagar, District Nainital. 2. In a nutshell, facts of the case are that the accused firm was engaged in purchasing of miscellaneous items for its hotel/resort from complainant firm, for which an amount of ₹6,14,298/- was due for the period from 1st April, 2021 to March, 2022 from the accused applicant/firm. The complainant was issued three cheques dated 26.04.2022 from accused/applicant firm in-lieu of payment for goods purchased. One Cheque No. 000045 dated 26.04.2022 of IDFC First Bank amounting to ₹1,50,000/- and two Cheques Nos.724481 1 2025:UHC:5173 and 724482 dated 26.04.2022 of Indusland Bank amounting ₹4,20,000/- and ₹1,00,000/-. The said cheques were deposited by the complainant in the Bank on the same day i.e., 26.04.2022, but Cheque Nos.000045 dated 26.04.2022 of IDFC First Bank amounting ₹1,50,000/- was returned unpaid to the complainant with the remarks “drawer signature not as per mandate” and two Cheque Nos.724481 and 724482 were returned unpaid with the remarks “fund insufficient”. The complainant then sent the registered notice which was served upon the applicants and accordingly after lapse of considerable time, he filed a complaint under Section 138 of the Act, 1881 before the court below. On the said complaint, the court below by way of impugned order took cognizance and summoned the applicants to face the trial under Section 138 of the Act, 1881. 3. The sole argument advanced on behalf of the applicants is that in this case there is non-compliance of provision of Section 141 of the Act, 1881. It was further argued that in view of Section 141 of the Act,1881, once the instrument has been issued by the company or the firm, the same is required to be impleaded necessarily which was not done by respondent herein in the complaint proceedings before the court below. 4. In such view of the matter, present C482 petition is allowed. Accordingly, the summoning order dated 07.09.2022 in Criminal Case No.451 of 2022, Nasmashkarji Aahar Kendra Vs. M/s S.K. Corbett Kings and others, under Section 138 of the Act, 1881, passed by learned Additional Chief Judicial Magistrate, Ramnagar, District Nainital is hereby quashed. 2 2025:UHC:5173 5. However, this Court is conscious of the fact that option to initiate proceedings under Section 138 of Act, 1881 after complying with mandatory provision of Section 141 Act, 1881 is now hopelessly time barred as the period prescribed for issuance of statutory notice under Section 138 of Act, 1881 has long been expired. As it is a trite law that an act may constitute offence under more than one statute, therefore, even if it is not possible to hold the accused liable under Section 138 of Act, 1881 it is observed that quashing of present proceedings would not be construed as an impediment for the respondent to prefer fresh proceedings under any other statute and the respondent is free to avail any other remedy available to him under penal laws. My view is further fortified by law laid down by Apex Court in the case of Bijoy Kumar Moni Vs. Paresh Manna and another in Criminal Appeal No.5556 of 2024 decided on 20.12.2024. The relevant portion of the aforesaid judgment is quoted herein below:- “77. We leave it open to the complainant to approach the jurisdictional police station and lodge an appropriate FIR against the accused. If the complainant lodges an FIR, the concerned police officer in-charge of the police station shall investigation the same in accordance with law.” 6. Pending application, if any, stands disposed of accordingly. (Pankaj Purohit, J.) 19.06.2025 SK 3