Manoj Kumar Gautam and another v. Upendra Gupta and another), under section

1. Heard Sri Rishika Raj Singhal, learned counsel for the applicant as well as Sri Vikas Sharma, learned State Law Officer for the State.

2. This application u/s 528 of BNSS has been preferred to quash the impugned complaint dated 12.04.2024 registered as Criminal Case No. 303 of 2024 (Manoj Kumar Gautam and another vs. Upendra Gupta and another), under section 138 N.I. Act, Police station- Quashi, District- Aligarh, pending before learned Presiding Officer/Additional Court, Aligarh, as well as impugned order of summoning dated 30.09.2024 passed by learned Presiding Officer/Additional Court, Aligarh.

3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no. 2 on 12.04.2024 under Section 138 of the NI Act against the applicant with an allegation that the opposite party no. 2 is the proprietor of a firm which engaged in advertising and the applicant herein also with respect to advertising had approached and met the opposite party no. 2. The opposite party no. 2, on the direction of the applicant, had completed the entrusted work on 17.12.2022 and total amount of the work so executed by the opposite party no. 2 for the applicant came to be Rs. 1,15,15,801/-. It is alleged that the applicant in this regard had issued three cheques bearing no 022616 dated 18.11.2023, Rs. 3,00,000/-, cheque no. 022617 dated 30.11.2023, Rs. 3,00,000/- and 022619 dated 23.01.2024 of Rs. 2,04,000/- and so far as the present cheque is concerned, the same was for an amount of Rs. 2,04,000/- which came to be dishonored on 06.02.2024 pursuant whereto a statutory demand notice was issued on 23.02.2024 to which a reply came to be submitted as per para 7 of the complaint of 10.03.2024 followed by a complaint of 12.04.2024 and summoning of applicant on 30.09.2024 under Section 138 of the NI Act. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for a simple reason that in order to attract the provisions of Section 138 of the NI Act with respect to debt and liabilities what would be relevant would be the actual determined amount which is to be due against for which in order to discharge the said liability, cheques are being drawn. He submits that in the present case in hand as per the complaint in para 3 the allegation is that the total amount due and payable for the work entrusted and completed was 11,15,801-/, however, an FIR also came to be lodged by the opposite party no. 2 against the applicant before the police station Quarsi, District Aligarh being FIR No. 0743 under Sections 406, 420, 467, 468, 471, 504 and 506 wherein the amount is stated to be due was 9,11,801/-. Attention has also been drawn towards the complaint with respect to other cheques being Complaint No. 304 of 2024 wherein the amount shown to be due was 9,11,801/-, thus, according to the learned counsel for the applicant once there happens to be two different amounts depicting the total amount due and cannot payable then the entire story so sought to be cooked up with relation to dishonoring of the cheque in discharge of the liability itself is bound to fail. Learned counsel for the applicant further submits that the said cheques were kept with the opposite party no. 2 as security and they have been mis-utilized particularly when the applicant herein was a sub-contractor in order to discharge the work for the opposite party no. 2 certain cheques were drawn by the applicant which was kept as security but they were misused and mis-utilized, thus, no offences are committed under Section 138 of the NI Act. Further submission is that though in the complaint in paragraph no. 7, it has been asserted that the applicant had submitted reply through its counsel on 10.03.2024 through legal notice but as per the instructions received by the counsel for the applicant, no such reply was submitted to the said comment.

4. Learned State Law Officer, on the other hand, submits that whatever might be once the cheque stood drawn then the presumption under Section 139 would be there and merely because the total amount due are different in different complaint would not be a ground to hold the summoning order illegal.

5. I have heard the submission so made across the bar and perused the record carefully.

6. Apparently, a cheque of an amount of Rs. 2,04,000/- stood drawn which was dishonored, statutory demand notice was issued followed by the complaint and the summoning order. The submission of the learned counsel for the applicant that total amount due and payable are not conclusive as two different figures have been mentioned in two different complaints and the FIR, thus, the summoning order cannot be sustained is not convincible particularly when once the cheque stood drawn and stood dishonored then the presumption under Section 139 would be there. The question as to whether what is the actual due amount payable is a question which would need consideration, if any, in accordance with law at this stage when the trial commences and not at the stage of summoning. With respect to the submission of the learned counsel for the applicant that the said cheques were security cheques, thus, they do not answer the description of debts and liabilities under the 138 of the NI Act, the same is not acceptable since the issue is no more res integra as they are subject matter of trial as held in M/s Womb Laboratories Pvt. Ltd. vs. Vijay Ahuja 2022 (18) SCC 631 and in Sunil Todi vs. the State of Gujarat 2022 (16) SCC 762.

7. In so far as the argument of the learned counsel for the applicant that the cheques have been mis-utilized is not liable to be seen at this stage particularly when it may be at best the defence consideration whereof would require only when trial commences and not at this stage. In absence of pointing out of any legal infirmity with regard to infraction of provisions of section 138 and 142 of the NI Act and convincible document, this Court is not required to delve into the said issue.

8. Accordingly, interference is declined, application stands disposed of leaving it open to the applicant to raise all legal and factual issues before the court below while contesting the trial and this Court has no reasons to disbelieve that the same shall be considered in accordance with law. Order Date :- 14.7.2025 Rajesh

1. Heard Sri Rishika Raj Singhal, learned counsel for the applicant as well as Sri Vikas Sharma, learned State Law Officer for the State.

2. This application u/s 528 of BNSS has been preferred to quash the impugned complaint dated 12.04.2024 registered as Criminal Case No. 303 of 2024 (Manoj Kumar Gautam and another vs. Upendra Gupta and another), under section 138 N.I. Act, Police station- Quashi, District- Aligarh, pending before learned Presiding Officer/Additional Court, Aligarh, as well as impugned order of summoning dated 30.09.2024 passed by learned Presiding Officer/Additional Court, Aligarh.

3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no. 2 on 12.04.2024 under Section 138 of the NI Act against the applicant with an allegation that the opposite party no. 2 is the proprietor of a firm which engaged in advertising and the applicant herein also with respect to advertising had approached and met the opposite party no. 2. The opposite party no. 2, on the direction of the applicant, had completed the entrusted work on 17.12.2022 and total amount of the work so executed by the opposite party no. 2 for the applicant came to be Rs. 1,15,15,801/-. It is alleged that the applicant in this regard had issued three cheques bearing no 022616 dated 18.11.2023, Rs. 3,00,000/-, cheque no. 022617 dated 30.11.2023, Rs. 3,00,000/- and 022619 dated 23.01.2024 of Rs. 2,04,000/- and so far as the present cheque is concerned, the same was for an amount of Rs. 2,04,000/- which came to be dishonored on 06.02.2024 pursuant whereto a statutory demand notice was issued on 23.02.2024 to which a reply came to be submitted as per para 7 of the complaint of 10.03.2024 followed by a complaint of 12.04.2024 and summoning of applicant on 30.09.2024 under Section 138 of the NI Act. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for a simple reason that in order to attract the provisions of Section 138 of the NI Act with respect to debt and liabilities what would be relevant would be the actual determined amount which is to be due against for which in order to discharge the said liability, cheques are being drawn. He submits that in the present case in hand as per the complaint in para 3 the allegation is that the total amount due and payable for the work entrusted and completed was 11,15,801-/, however, an FIR also came to be lodged by the opposite party no. 2 against the applicant before the police station Quarsi, District Aligarh being FIR No. 0743 under Sections 406, 420, 467, 468, 471, 504 and 506 wherein the amount is stated to be due was 9,11,801/-. Attention has also been drawn towards the complaint with respect to other cheques being Complaint No. 304 of 2024 wherein the amount shown to be due was 9,11,801/-, thus, according to the learned counsel for the applicant once there happens to be two different amounts depicting the total amount due and cannot payable then the entire story so sought to be cooked up with relation to dishonoring of the cheque in discharge of the liability itself is bound to fail. Learned counsel for the applicant further submits that the said cheques were kept with the opposite party no. 2 as security and they have been mis-utilized particularly when the applicant herein was a sub-contractor in order to discharge the work for the opposite party no. 2 certain cheques were drawn by the applicant which was kept as security but they were misused and mis-utilized, thus, no offences are committed under Section 138 of the NI Act. Further submission is that though in the complaint in paragraph no. 7, it has been asserted that the applicant had submitted reply through its counsel on 10.03.2024 through legal notice but as per the instructions received by the counsel for the applicant, no such reply was submitted to the said comment.

4. Learned State Law Officer, on the other hand, submits that whatever might be once the cheque stood drawn then the presumption under Section 139 would be there and merely because the total amount due are different in different complaint would not be a ground to hold the summoning order illegal.

5. I have heard the submission so made across the bar and perused the record carefully.

6. Apparently, a cheque of an amount of Rs. 2,04,000/- stood drawn which was dishonored, statutory demand notice was issued followed by the complaint and the summoning order. The submission of the learned counsel for the applicant that total amount due and payable are not conclusive as two different figures have been mentioned in two different complaints and the FIR, thus, the summoning order cannot be sustained is not convincible particularly when once the cheque stood drawn and stood dishonored then the presumption under Section 139 would be there. The question as to whether what is the actual due amount payable is a question which would need consideration, if any, in accordance with law at this stage when the trial commences and not at the stage of summoning. With respect to the submission of the learned counsel for the applicant that the said cheques were security cheques, thus, they do not answer the description of debts and liabilities under the 138 of the NI Act, the same is not acceptable since the issue is no more res integra as they are subject matter of trial as held in M/s Womb Laboratories Pvt. Ltd. vs. Vijay Ahuja 2022 (18) SCC 631 and in Sunil Todi vs. the State of Gujarat 2022 (16) SCC 762.

7. In so far as the argument of the learned counsel for the applicant that the cheques have been mis-utilized is not liable to be seen at this stage particularly when it may be at best the defence consideration whereof would require only when trial commences and not at this stage. In absence of pointing out of any legal infirmity with regard to infraction of provisions of section 138 and 142 of the NI Act and convincible document, this Court is not required to delve into the said issue.

8. Accordingly, interference is declined, application stands disposed of leaving it open to the applicant to raise all legal and factual issues before the court below while contesting the trial and this Court has no reasons to disbelieve that the same shall be considered in accordance with law. Order Date :- 14.7.2025 Rajesh