Sandeep Kumar Sharma v. Subhash Chandra Sharma), under Section

1. Heard Sri Surya Pratap Singh Parmari learned counsel for the applicant and Sri Pankaj Kumar Rai, learned State Law Officer for the State.

2. This is an application filed under Section 528 of the B.N.S.S. for quashing the entire criminal proceeding of the Complaint Case No. 968 of 2023 (Sandeep Kumar Sharma Vs. Subhash Chandra Sharma), under Section 138 of Negotiable Instrument Act, Police Station Gabhana, District- Aligarh, pending in the court of Learned Additional Court, Aligarh as well as summoning order dated 02.11.2023 passed by Learned Additional Court, Aligarh in aforesaid Complaint Case No. 968 of 2023 (Sandeep Kumar Sharma Vs. Subhash Chandra Sharma) and order dated 26.05.2025 passed by learned Sessions Judge, Aligarh in Criminal Revision No. 155 of 2025 (Subhash Chandra Sharma Vs. State of U.P. And Another).

3. Learned counsel for the applicant has submitted that on 13.1.2023 a complaint stood lodged by the opposite party no.2 with respect to an allegation that an amount approximately Rs.30 lakhs was paid by the opposite party no.2 to the applicant and the applicant herein had drawn three cheques however so far as the cheque which is being subject matter herein concerned the same is dated 20.11.2022 for an amount of Rs.12 lakh bearing no.023639 which on presentation in the bank came to be dishonoured on 21.11.2022 followed by a statutory demand notice dated 5.12.2022 and the applicant came to be summoned on 2.11.2023 under Section 138 of the N.I. Act. Against the summoning order the applicant preferred a revision bearing No.155 of 2025 which was rejected by the revisional court on 26.5.2025.

4. Learned counsel for the applicant has further submitted that the summoning order as well as the revisional order cannot be sustained for the simple reason particularly when firstly there is no date, time mentioned with regard to the amount which is being stated to have been paid by the opposite party no.2 to the applicant, secondly the cheque in question had not been dishonoured as no such amount was deducted for the bank account of the applicant, thirdly the cheque was with the opposite party no.2 as security and the same stood misutilized while filling up the figures and words and getting it dishonoured and fourthly he submits that the original cheque in question was not produced before the court below as a photocopy of the same was there not the true copy of the same, thus the entire proceeding stands vitiated. As regards the submissions that the cheque was not dishonoured reference may be made to the page 47 of the paper book which is the returned memo of the bank itself.

5. Learned State Law Officer on the other hand submits that once the cheque stood drawn and it has been dishonoured then the presumption under Section 139 of the N.I. Act would be in favour of the holder and further the question as to whether the cheque was a security cheque is a subject matter of trial.

6. I have heard the submissions so made across the bar and perused the record carefully. Apparently, as per the allegation in the complaint in question a cheque of Rs.12 lakh is stated to have been drawn by the applicant which has been dishonoured followed by statutory demand notice and the complaint. As a matter of fact whether the cheque was by way security or not and it has been misutilized the same is a question of trial which is not required to be gone into at the stage of summoning in the judgement of Hon'ble Apex Court in the case of M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another (2022) 18 SCC 631 has observed as under:- "In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques."

7. In Sunil Todi and others Vs. State of Gujarat, (2022) 16 SCC 762 the Hon'ble Apex Court has reiterated the aforesaid law.

8. As regards the submission of learned counsel for the applicant that there is no details and the dates of the payment so made and also the mode of payment in the complaint thus the theory so sought to be propounded in the complaint is unbelievable and improbable for a prudent person to even imagine is concerned, this Court is not required to also go in to the said issue as the same is the matter of trial. With respect to the allegation that the original cheque was not placed before the court below either by way of complaint or subsequently, the same would not make the summoning order suffer from the informity as the same may be a ground whose velocity and strength is to be tested when the trial commences.

9. In the opinion of the Court, the trial court as well as the revisional court has not committed any error. However, the application stands disposed of granting liberty to the applicant to take all legal and factual grounds before the court below while contesting the matter and this court has no reasons to disbelieve that in case legal and factual grounds are taken, then the same shall be dealt with in accordance with law. Order Date :- 14.7.2025 piyush

1. Heard Sri Surya Pratap Singh Parmari learned counsel for the applicant and Sri Pankaj Kumar Rai, learned State Law Officer for the State.

2. This is an application filed under Section 528 of the B.N.S.S. for quashing the entire criminal proceeding of the Complaint Case No. 968 of 2023 (Sandeep Kumar Sharma Vs. Subhash Chandra Sharma), under Section 138 of Negotiable Instrument Act, Police Station Gabhana, District- Aligarh, pending in the court of Learned Additional Court, Aligarh as well as summoning order dated 02.11.2023 passed by Learned Additional Court, Aligarh in aforesaid Complaint Case No. 968 of 2023 (Sandeep Kumar Sharma Vs. Subhash Chandra Sharma) and order dated 26.05.2025 passed by learned Sessions Judge, Aligarh in Criminal Revision No. 155 of 2025 (Subhash Chandra Sharma Vs. State of U.P. And Another).

3. Learned counsel for the applicant has submitted that on 13.1.2023 a complaint stood lodged by the opposite party no.2 with respect to an allegation that an amount approximately Rs.30 lakhs was paid by the opposite party no.2 to the applicant and the applicant herein had drawn three cheques however so far as the cheque which is being subject matter herein concerned the same is dated 20.11.2022 for an amount of Rs.12 lakh bearing no.023639 which on presentation in the bank came to be dishonoured on 21.11.2022 followed by a statutory demand notice dated 5.12.2022 and the applicant came to be summoned on 2.11.2023 under Section 138 of the N.I. Act. Against the summoning order the applicant preferred a revision bearing No.155 of 2025 which was rejected by the revisional court on 26.5.2025.

4. Learned counsel for the applicant has further submitted that the summoning order as well as the revisional order cannot be sustained for the simple reason particularly when firstly there is no date, time mentioned with regard to the amount which is being stated to have been paid by the opposite party no.2 to the applicant, secondly the cheque in question had not been dishonoured as no such amount was deducted for the bank account of the applicant, thirdly the cheque was with the opposite party no.2 as security and the same stood misutilized while filling up the figures and words and getting it dishonoured and fourthly he submits that the original cheque in question was not produced before the court below as a photocopy of the same was there not the true copy of the same, thus the entire proceeding stands vitiated. As regards the submissions that the cheque was not dishonoured reference may be made to the page 47 of the paper book which is the returned memo of the bank itself.

5. Learned State Law Officer on the other hand submits that once the cheque stood drawn and it has been dishonoured then the presumption under Section 139 of the N.I. Act would be in favour of the holder and further the question as to whether the cheque was a security cheque is a subject matter of trial.

6. I have heard the submissions so made across the bar and perused the record carefully. Apparently, as per the allegation in the complaint in question a cheque of Rs.12 lakh is stated to have been drawn by the applicant which has been dishonoured followed by statutory demand notice and the complaint. As a matter of fact whether the cheque was by way security or not and it has been misutilized the same is a question of trial which is not required to be gone into at the stage of summoning in the judgement of Hon'ble Apex Court in the case of M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another (2022) 18 SCC 631 has observed as under:- "In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques."

7. In Sunil Todi and others Vs. State of Gujarat, (2022) 16 SCC 762 the Hon'ble Apex Court has reiterated the aforesaid law.

8. As regards the submission of learned counsel for the applicant that there is no details and the dates of the payment so made and also the mode of payment in the complaint thus the theory so sought to be propounded in the complaint is unbelievable and improbable for a prudent person to even imagine is concerned, this Court is not required to also go in to the said issue as the same is the matter of trial. With respect to the allegation that the original cheque was not placed before the court below either by way of complaint or subsequently, the same would not make the summoning order suffer from the informity as the same may be a ground whose velocity and strength is to be tested when the trial commences.

9. In the opinion of the Court, the trial court as well as the revisional court has not committed any error. However, the application stands disposed of granting liberty to the applicant to take all legal and factual grounds before the court below while contesting the matter and this court has no reasons to disbelieve that in case legal and factual grounds are taken, then the same shall be dealt with in accordance with law. Order Date :- 14.7.2025 piyush