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IN THE HON’BLE HIGH COURT OF JUDICATURE AT
ALLAHABAD, LUCKNOW BENCH, LUCKNOW.

A482 ___________/2024
(Under Section 482 of Cr. P.C./528 BNSS)

Vivek Mishra
…Petitioner
vs

State of U.P. & Anr.

…Opposite
Parties

INDEX
 IN THE HON’BLE HIGH COURT OF JUDICATURE AT
ALLAHABAD, LUCKNOW BENCH, LUCKNOW.

A482 ___________/2024
(Under Section 482 of Cr. P.C./528 BNSS)

Vivek Mishra
…Petitioner
vs

State of U.P. & Anr.

…Opposite
Parties

SYNOPSYS/DATES & EVENTS

 IN THE HON’BLE HIGH COURT OF JUDICATURE AT
ALLAHABAD, LUCKNOW BENCH, LUCKNOW.

A482 ___________/2024
(Under Section 482 of Cr. P.C./528 BNSS)

Vivek Mishra son of Late R. C. Mishra resident of E-10 Fortune Enclave,

Kolar Road, Kolar Nagar Palika, Huzur, Bhopal, Madhya Pradesh-
462042.
…Petitioner
vs

1. State of U.P.
2. District Magistrate, Lucknow
3. Station House Officer, PS. Vikas Nagar, District: Lucknow
4. Complainant- Savita Dixit wife of Late P.C. Dixit resident of D-6/8 PWD
Colony, Rajendra Nagar, Lucknow-226004, PS. Naka, District: Lucknow
Central.
…Opposite
Parties

Criminal Complaint No.: 31902/2022

U/s- 138/142 of Negotiable
Instruments Act, 1881
P.S. Aminabad Lucknow
District- Lucknow

APPLICATION FOR INTERIM RELIEF

The humble applicant/petitioner most respectfully prays as under;

For facts, reasons and circumstances as stated in the accompanying

affidavit, it is most respectfully prayed that this Hon’ble Court may
kindly be pleased to stay the entire criminal proceedings till further
orders of this Hon’ble Court arising out of criminal complaint bearing
no. 31905/21 pending before the Learned Addl. Judge, N.I. Act, Court
No. 12, Lucknow (forshort “Ld. Court”) under section 138 N.I. Act and
during such course of trial, proceedings under Section 83 Cr.P.C. has
been initiated by the Ld. Court on 14.11.2024 against the Petitioner
and the case is further listed on 18.12.2024 for statements under
Section 251 Cr.P.C.
It is expedient in the interest of justice to pray before this Hon’ble
Court may kindly stay the coercive proceedings against the Petitioner,
as the proceedings initiated by the Ld. Court are erroneous and
inconsistent with the law & facts.

And/or to pass such order and further order or direction which this
Hon’ble Court may deem fit and proper in the interest of justice;
otherwise, the petitioner shall suffer irreparable loss and injury.

Date:
 IN THE HON’BLE HIGH COURT OF JUDICATURE AT
ALLAHABAD, LUCKNOW BENCH, LUCKNOW.

A482 ___________/2024
(Under Section 482 of Cr. P.C./528 BNSS)

Vivek Mishra son of Late R. C. Mishra resident of E-10 Fortune Enclave,

Kolar Road, Kolar Nagar Palika, Huzur, Bhopal, Madhya Pradesh-
462042.
…Petitioner
vs

1. State of U.P.
2. District Magistrate, Lucknow
3. Station House Officer, PS. Vikas Nagar, District: Lucknow
4. Complainant- Savita Dixit wife of Late P.C. Dixit resident of D-6/8 PWD
Colony, Rajendra Nagar, Lucknow-226004, PS. Naka, District: Lucknow
Central.
…Opposite
Parties

Criminal Complaint No.: 31902/2022

U/s- 138/142 of Negotiable
Instruments Act, 1881
P.S. Aminabad Lucknow
District- Lucknow
To,
Hon’ble The Chief Justice & his Companion Judges of his Hon’ble High Court
Lucknow Bench, Lucknow.

PETITON UNDER SECTION 482 Cr. P.C./528 BNSS

The humble applicant/petitioner most respectfully prays as under;

For facts, reasons and circumstances as stated in the accompanying

affidavit, it is most respectfully prayed that this Hon’ble Court may
kindly be pleased to stay the entire criminal proceedings till further
orders of this Hon’ble Court arising out of criminal complaint bearing
no. 31905/21 pending before the Learned Addl. Judge, N.I. Act, Court
No. 12, Lucknow (hereinafter referred as “Ld. Court”) under section
138 N.I. Act and during such course of trial, proceedings under Section
83 Cr.P.C. has been initiated by the Ld. Court on 14.11.2024 against
the Petitioner and the case is further listed on 18.12.2024 for
statements under Section 251 Cr.P.C.

It is expedient in the interest of justice to pray before this Hon’ble

Court may kindly stay the coercive proceedings against the Petitioner,
as the proceedings initiated by the Ld. Court are erroneous and
inconsistent with the law & facts.

And/or to pass such order and further order or direction which this
Hon’ble Court may deem fir and proper in the interest of justice;
otherwise, the petitioner shall suffer irreparable loss and injury.

Place: Lucknow

Date:
 IN THE HON’BLE HIGH COURT OF JUDICATURE AT
ALLAHABAD, LUCKNOW BENCH, LUCKNOW.

A482 ___________/2024
(Under Section 482 of Cr. P.C./528 BNSS)

Vivek Mishra son of Late R. C. Mishra resident of E-10 Fortune Enclave,

Kolar Road, Kolar Nagar Palika, Huzur, Bhopal, Madhya Pradesh-
462042.
…Petitioner
vs

1. State of U.P.
2. District Magistrate, Lucknow
3. Station House Officer, PS. Vikas Nagar, District: Lucknow
4. Complainant- Savita Dixit wife of Late P.C. Dixit resident of D-6/8 PWD
Colony, Rajendra Nagar, Lucknow-226004, PS. Naka, District: Lucknow
Central.
…Opposite
Parties

Criminal Complaint No.: 31902/2022

U/s- 138/142 of Negotiable
Instruments Act, 1881
P.S. Aminabad Lucknow
District- Lucknow
To,
Hon’ble The Chief Justice & his Companion Judges of his Hon’ble High Court
Lucknow Bench, Lucknow.

AFFIDAVIT IN SUPPORT OF PETITION UNDER SECTION 482 Cr.

P.C./528 BNSS

I, Vivek Mishra son of Late R. C. Mishra resident of E-10 Fortune Enclave,

Kolar Road, Kolar Nagar Palika, Huzur, Bhopal, Madhya Pradesh-462042, do
hereby solemnly affirm that and state on oath as under:-
 1. That the deponent himself is the petitioner and as such, he is fully
conversant with the facts of the case deposed to here under:

2. That the deponent is Hindu by religion Literate by education and

businessman by profession.

3. That this the first petition u/s 482 Cr.P.C. and 528 BNSS, being filed by
the petitioner, and except the present petition, the petitioner has not
preferred any other petition for the relief in any court of law, which has
been sought in this petition before this Hon’ble Court either at
Allahabad or at Lucknow.

4. That by means of the present petition under section 482 Cr.P.C. and
528 BNSS, the petitioner being prayed to quash the criminal
proceeding u/s 83 Cr.P.C. initiated by the Learned Addl. Judge, N.I. Act,
Court No. 12, Lucknow (hereinafter referred as “Ld. Court”) on very
mere ground of non-appearance due to misinformation regarding the
hearing date provided by the Counsel of petitioner.

5. That at the outset it is respectfully submitted herein that the petitioner

is a law abiding citizen and the coercive proceedings has falsely been
initiated against him.

FACTUAL MATRIX

That the facts of the present case in a nutshell are as follows:

6. That the Opposite Party no. 4 (forshort ‘O.P. No.’) had lodged the
criminal complaint under section 138 of Negotiable Instruments Act,
1881 against the petitioner on 04.8.2021 as allegedly imposing
allegations upon the petitioner that the petitioner and complainant had
old acquaintance and on that accountability the petitioner had taken
total Rs. 10,00,000/- (Ten Lakh Rupees) in part from complainant as a
loan for one year, on a first part he had taken Rs. 9,60,000/- (Nine Lakh
Sixty Thousand Rupees) dated 06.9.2019 through cheque bearing no.
695914 (SBI, Branch: Aminabad) and on the second/last part Rs.
40,000/- (Forty Thousand Rupees) had been taken by the petitioner by
cash for the business purpose. However the havoc i.e. Covid-19 at its
peak in 2020 and due to this the petitioner was unable to make
 payment back to complainant on given time but on 02.4.2021 the
petitioner had made the cheque bearing no. 565780 (PNB, Branch:
Habibganj Bhopal) of Rs. 10,00,000/- (Ten Lakh Rupees) in favor of
complainant which was withdrawn in a bank by the complainant on
17.5.2021 and got bounced on 20.5.2021 due to insufficient balance.
After non-payment of aforesaid amount, the complainant preferred the
criminal complaint bearing no. 31902/2021 u/s 138/142 of Act, 1881
against the petitioner.

7. That the petitioner while showing his bonafide, on a several telephonic

conversation tried to make her convince that at this period of time he
is unable to make payment in favor of complainant due to
impoverished position of his business where he invested her loan
amount alongside he promised to complainant that he shall pay back
her loan amount by arranging it anyhow at the earliest. While not
considering his request, the complainant preferred to file the criminal
complaint. In pursuance to the said complaint the Ld. trial court issued
summons, bailable warrant against the petitioner, however the
petitioner was unable to appear before the Ld. trial court eventually
non-bailable warrant was issued.

8. That the complainant provided the wrong address to Ld. Court where
the petitioner is not residing, resultant thereof and when the Police
officials in compliance of the non-bailable warrant approached the
wrongly provided address and wherein they maltreated and tormented
the petitioner’s mother and brother. As soon as the petitioner came to
know that the NBW had issued against him, he at the earliest
surrendered before the Ld. trial court and prayed for recall the NBW.
The Ld. Trial Court recalled the NBW.

9. That the Ld. Trial Court had issued the NBW on 20.7.2024 which has
been recalled on 24.9.2024 on an undertaking filed by the petitioner in
which he undertook to make 25% payment of claimed amount i.e. Rs.
7,50,000/- (Seven Lakh Fifty Thousand Rupees) in favor of complainant
within next date of hearing, and the Ld. Presiding Officer fixed the case
on very short date i.e. 08.10.2024 to which the petitioner orally
requested for more time to arrange the ordered amount but the Ld.
Court refused.

10. That on 8.10.2024 the petitioner anyhow arranged Rs. 2,50,000/-

(Two Lakh Fifty Thousand Rupees) and paid in favor of complainant
through demand draft bearing no. 677967 and prayed for further time
 to pay the outstanding amount and the case was further fixed for
25.10.2024.

11. That on 25.10.2024, the counsel filed an exemption from personal

appearance due to petitioner being suffered from Chikungunya virus
infection and subsequently filed an adjournment whereas the cost of
Rs. 750/- imposed on the petitioner by the Ld. Court which was later
paid and the case was further fixed for 07.11.2024.

12. That on 07.11.2024, the petitioner paid Rs. 49,990/- and Rs. 10/- i.e.
total Rs. 50,000/- (Ffity Thousand Rupees) to the complainant through
UPI transaction reference no. 431211692182 and 431261679377
respectively alongside filed an exemption from personal appearance
and subsequently filed an adjournment whereas the cost of Rs. 750/-
imposed on the petitioner by the Ld. Court which was later paid and
the case was further fixed for 14.11.2024.

13. That on 14.11.2024, the counsel for the petitioner did not attend the
hearing and the same is not within the knowledge of the petitioner
despite the petitioner made the payment of Rs. 20,000/- (Twenty
Thousand Rupees) to the complainant through UPI transaction
reference no. 468560570993, but the Ld. court initiated the
proceedings under section 83 Cr.P.C. against the petitioner directly
without issuing the warrant following by proceedings u/s 82 Cr.PC.
which shows the infirmity of legal institution.

14. That the court concerned without issuing the notice to the sureties
and proceedings under secion 82 Cr.P.C., initiated the proceedings u/s
83 Cr.P.C. however the petitioner did not participate only on 14.7.2024,
on the previous date, the counsel of the petitioner appeared and
complied with the order as to costs.

15. That before issuing the proclamation under section 82 Cr.P.C. the
court concerned must ensure on the fact as to whether the notice,
summon, bailable warrant and non-bailable warrant are served upon
the petitioner and as to whether he is deliberately avoiding those
process, inasmuch as this is a trite law that the proclamation under
sections 82/83 Cr.P.C. should not be issued in a casual and cursory
manner, however in the present case the impugned order dated
14.11.2024 does not reveal that the aforesaid satisfaction has been
indicated in the impugned order itself. Therefore, the impugned order
dated 14.11.2024 issued under section 83 Cr.P.C. is per se illegal and
against the settled proposition of law.
16. That in the case of “Pradeep Agnihotri vs. State of U.P. and
Anr.” 2024:AHC-LKO:2024, this Hon’ble Court while giving the
liberty to the petitioner, kept the all the coercive steps including
proclamation order in abeyance and also made the observation vide
order dated 07.3.2024. The excerpt of the aforesaid order is being
reproduced herein under as:

9. Having heard learned counsel for the petitioner and

having perused the material available on the record, at the
very outset, I must observe that before issuing
proclamation under Sections 82/83 Cr.P.C. by any
Subordinate Court, at least, satisfaction must be indicated
in an order to the effect that despite the service of notice,
summon, bailable warrant and non-bailable warrant the
person concerned has deliberately avoided the
proceedings. Further, any order of proclamation under
Sections 82/83 Cr.P.C. must be passed on an application of
a person concerned/ Investigating Officer etc. to the effect
that after service of notice, summon, bailable warrant and
non-bailable warrant upon the person concerned, he/ she is
avoiding the proceedings so a proclamation may be issued
and on such application, which must be supported with an
affidavit, the court concerned may issue proclamation
under Sections 82/ 83 Cr.P.C. indicating the subjective
satisfaction on the aforesaid aspect in the order itself. If
any order issuing proclamation under Sections 82/83
Cr.P.C. lacks the aforesaid procedure, the such order would
be nullity in the eyes of law. Sometimes, it has been noted
that the Investigating Agency seeks proclamation order
from the court concerned so as to exert the pressure upon
the person concerned and the court concerned without
taking care of specific procedure issues proclamation
under Sections 82/83 Cr.P.C. in a cursory and mechanical
manner.

12. Notably, as per Section 143 (3) of N.I. Act, every trial
under this Act shall be conduced and concluded
expeditiously as possible and may be concluded within a
maximum period of six months from the date of filing of
 such complaint. Therefore, I do not find it proper to keep
this petition pending any longer, giving liberty to the
petitioner appear before the court concerned on the date
fixed i.e. 22.03.2024 and if the petitioner appears/
surrenders before the court concerned on the date fixed
i.e. 22.03.2024, all coercive steps including the impugned
summoning order dated 28.03.2023 and the proclamation
order dated 15.02.2024 shall be kept in abeyance and
liberty would be given to the petitioner to participate in the
proceedings. Thereafter, the petitioner may file
appropriate application before the court concerned and
such proceedings may be conducted and concluded with
expedition by fixing short dates and without giving
unnecessary adjournment to any of the parties concerned.
It is needless to say that ample opportunity of hearing
should be afforded not only the petitioner but the

complainant also.

17. That in light of the aforementioned order dated 07.3.2024 of this

Hon’ble Court, it is made clear that if the petitioner did not appear
deliberately, he is not liable to fall under proclamation procedure
defined under sections 82/82 Cr.PC.

18. That the Apex Court in the case in re: Inder Mohan Goswami and
another vs. State of Uttaranchal and others reported in (2007)
12 SCC 1 has observed the mechanism as to how the liberty of any
person may be curtailed inasmuch as every citizen has got
fundamental right of his liberty under Article 21 of the Constitution of
India. Such liberty may be curtailed by the court concerned if the court
has got specific and cogent reason and that reason must be mentioned
while issuing the proclamation order.

19. That the petitioner is ready to participate in the proceedings so that

he could apprise the trial court about his bonafide but the petitioner is
having apprehension that if he appears before the Ld. Trial court his
liberty may be curtailed.

GROUNDS
20. Because, the proceedings initiated by the Ld. Trail Court u/s 83 Cr.P.C.
against the petitioner is against the preposition of settled law.

21. Because, the Ld. Trial Court without service of notice to the sureties,
initiated the proceedings u/s 83 Cr.P.C. against the petitioner directly
without issuing the warrant following by proceedings u/s 82 Cr.PC.

22. Beacsue, the notices, summons and warrants have been issued at the
address where the petitioner is not residing, resultant thereof, the
notice could not be served upon the petitioner and he could not
participate.

23. Because, petitioner is ready to pay the rest claimed amount to the
complainant in a manner of installments.

24. Because, the petitioner is ready to participate in the proceedings

pending before the Ld. Trail Court where already showed his bonafide
by complying the order of Ld. Trail Court.

25. Because, the petitioner with a bonafide conduct paid as much amount
as he can arrange & manage at that certain period of time.