High Court

1. Heard Sri Vaibhav Sharma along with Manoj Kumar Dubey, learned counsel for the applicant in leading as well as connected application and Sri Vikas Sharma, learned State Law Officer for the State.

2. A joint statement has been made by the learned counsel for the applicant in both the applications that they do not propose to file any affidavit and the application be decided on the basis of the documents available on record. With the consent of the parties, the applications are being decided at the fresh stage.

3. The case set out in the leading application is that a complaint stood lodged by the opposite party no. 2 against the applicant under Section 138 of the NI Act on 22.03.2023 with an allegation that there happens to be cordial relationship between the family of the complainant and the applicant on 29.07.2022 the mother-in-law of the complainant namely, Smt. Monika Gupta had purchased a plot through registered sale deed from the brother of the applicant and father. At that time, the allegation is that the applicant approached Sri Amit Kumar (father-in-law of the complainant) opposite party no. 2 and showed dire need/requirement of Rs. 5,00,000/- in the 1st week of August and as such requested to Sri Amit Kumar to give the said amount. Further allegation is that Sri Amit Kumar, father-in-law of the opposite party no. 2 arranged an amount of Rs. 4,00,000/- in the 1st week of August and tendered Rs. 1,00,000/- and 3,00,000/- were taken as loan from the daughter-in-law-complainant. In the 1st week of November, 2022, the complainant and her father-in-law sought return of an amount of Rs. 4,00,000/- then pressure was mounted and two cheques were issued and so far as the first complaint is concerned, a cheque bearing no. 188754 of Rs. 1,00,000/- which on presentation in the bank, came to be dishonored for remarks 'insufficient fund' on 20.01.2023 and thereafter a statutory demand notice was issued followed by a complaint on 22.03.2023 pursuant whereto the applicant came to be summoned in Complaint Case No. 13736 of 2023 under Section 138 of the NI Act.

4. As regards the connected application is concerned, the allegations are same and the complaint stood lodged on 22.03.2023 under Section 138 of the NI Act by the opposite party no. 2 against the applicant with respect to dishonoring of a cheque bearing no. 188755 dated 22.12.2022 on 19.01.2023 followed by a statutory demand dated 15.02.2023 and a complaint on 22.03.2023 under Section 138 of the NI Act and summoning of the applicant in Complaint Case No. 13728 of 2023 under Section 138 of the NI Act on 07.07.2023.

5. Questioning the summoning orders, the leading and connected applications had been filed.

6. Learned counsel for the applicant in leading and connected applications has argued that the summoning order cannot be sustained for a single moment for more than one reason. Submission is that the applicant had made the entire payments as reflected in para 12 of the leading application and para 13 of the connected application which is supported by the bank statements and the accounts maintained by the applicant, thus, no legally enforceable debt or liability stood attracted under Section 138 of the NI Act so as to invoke penal provisions. Contention is that once the entire payments were made by the applicant then in these circumstances, the total amount so shown to be reflected in the cheque which is alleged to be dishonored would not be the actual amount due so as to incur any debt or liability under Section 138 of the NI Act. Reliance has also been placed upon Section 56 of the NI Act. Secondly, it is argued that the present complaint is not maintainable as important and vital facts which goes to the root of the matter have been concealed. Once, it was within the knowledge of the complainant opposite party no. 2 that the payment stood made and there was nothing due then the disclosure of the said fact ought to have been made in the complaint. In absence the making any disclosure, the complaint was bound to fail. Reliance has been placed upon the judgment of Hon'ble Apex Court in Rohan and others Vs. State of Gujarat and another: 2025 SCC OnLine SC 1056, Prashant Bharti Vs. State of NCT of Delhi: 2013 (3) SCC (Cri) 920 and Praveen Singh and 3 others Vs. State of U.P. and another: 2023 (1) All LJ 754. It is also contended that actually Rs. 10,00,000/- was taken as a financial assistance and the applicant had made the entire payment in that regard. Learned counsel for the applicant further submits that in any case, if any, amount is due and payment, the same would be Rs. 15,650/- and not more than that. Thus, it is prayed that the summoning order be quashed.

7. Learned State Law Officer, on the other hand, submits that while countering the submission of the learned counsel for the applicant has submitted that whatever arguments are being sough to be made, they center around factual issues which are not required to be gone into at this stage of summoning particularly when what is relevant is the presumption under Section 139 of the NI Act.

8. I have heard the submissions so made across the bar and perused the record carefully.

9. The sole question which arises for determination in the present proceedings is the extent of judicial intervention at this stage. Apparently, two cheques for an amount of Rs. 1,00,000/- and 3,00,000/- which are subject matter of the leading and the connected applications came to be dishonored pursuant whereto a statutory demand notice was issued and in failing to make payment within 15 days, the complaint under Section 138 of the NI Act came to be lodged and then the applicant came to be summoned under Section 138 of the NI Act. Much reliance has been placed upon by the learned counsel for the applicant while referring to paragraph no. 12 in the leading application and paragraph no. 13 in the connected application so as to contend that the amount so reflected in the cheque which is stated to have been dishonored had already been paid, thus, there was no legally enforceable debt or liability in that regard.

10. Notably, the averments made in paragraphs of the application and also reliance placed upon the relevant extracts (pages of the accounts) would not suffice the purpose particularly when the same becomes a subject matter of trial as consideration whereof would be required at an appropriate stage when the trial commences. At the stage of summoning, the Court is not required to delve into factual issues. Moreover, once the cheque stood drawn and dishonored then the presumption under Section 139 of the NI Act would always be in favour of the cheque i.e., the complainant. As regards the submission of the learned counsel for the applicant that there had been virtual concealment of material facts regarding payment of the entire amounts while alleging that the total amount which was taken as loan was Rs. 10,00,000/- and the same stood paid of and the residue amount, if any, at best, would be 15,000/- and odd is concerned. This Court is not required to delve into the said issue. The question that there has been any material concealment at the end of the complainant would be a subject matter of trial and the same cannot be gone into at this stage in view of the documents which have been filed by the applicant in the leading and the connected application which are not convincible as they do not lead to the sole conclusion that there have been concealment and non-disclosure of the vital fact made in the complaint. So far as reliance placed upon the judgments Rohan (supra), Prashant Bharti (supra) and Praveen Singh (supra) are concerned there is no quarrel to the proposition of law laid down therein. However, the said judgments would not apply in the given case at the stage wherein the cheques have been dishonored and the challenge has been raised to the summoning order.

11. Analysing the case from four corners of law, the Court finds that the summoning order cannot be faulted with. Accordingly, no case is made out for interference, the applicant stands disposed of leaving it open to the applicant to contest the trial taking all legal and factual issues which are permissible and advisable under law and the Court has no reasons to disbelieve that the same shall be considered in accordance with law. Order Date :- 9.7.2025 Rajesh

1. Heard Sri Vaibhav Sharma along with Manoj Kumar Dubey, learned counsel for the applicant in leading as well as connected application and Sri Vikas Sharma, learned State Law Officer for the State.

2. A joint statement has been made by the learned counsel for the applicant in both the applications that they do not propose to file any affidavit and the application be decided on the basis of the documents available on record. With the consent of the parties, the applications are being decided at the fresh stage.

3. The case set out in the leading application is that a complaint stood lodged by the opposite party no. 2 against the applicant under Section 138 of the NI Act on 22.03.2023 with an allegation that there happens to be cordial relationship between the family of the complainant and the applicant on 29.07.2022 the mother-in-law of the complainant namely, Smt. Monika Gupta had purchased a plot through registered sale deed from the brother of the applicant and father. At that time, the allegation is that the applicant approached Sri Amit Kumar (father-in-law of the complainant) opposite party no. 2 and showed dire need/requirement of Rs. 5,00,000/- in the 1st week of August and as such requested to Sri Amit Kumar to give the said amount. Further allegation is that Sri Amit Kumar, father-in-law of the opposite party no. 2 arranged an amount of Rs. 4,00,000/- in the 1st week of August and tendered Rs. 1,00,000/- and 3,00,000/- were taken as loan from the daughter-in-law-complainant. In the 1st week of November, 2022, the complainant and her father-in-law sought return of an amount of Rs. 4,00,000/- then pressure was mounted and two cheques were issued and so far as the first complaint is concerned, a cheque bearing no. 188754 of Rs. 1,00,000/- which on presentation in the bank, came to be dishonored for remarks 'insufficient fund' on 20.01.2023 and thereafter a statutory demand notice was issued followed by a complaint on 22.03.2023 pursuant whereto the applicant came to be summoned in Complaint Case No. 13736 of 2023 under Section 138 of the NI Act.

4. As regards the connected application is concerned, the allegations are same and the complaint stood lodged on 22.03.2023 under Section 138 of the NI Act by the opposite party no. 2 against the applicant with respect to dishonoring of a cheque bearing no. 188755 dated 22.12.2022 on 19.01.2023 followed by a statutory demand dated 15.02.2023 and a complaint on 22.03.2023 under Section 138 of the NI Act and summoning of the applicant in Complaint Case No. 13728 of 2023 under Section 138 of the NI Act on 07.07.2023.

5. Questioning the summoning orders, the leading and connected applications had been filed.

6. Learned counsel for the applicant in leading and connected applications has argued that the summoning order cannot be sustained for a single moment for more than one reason. Submission is that the applicant had made the entire payments as reflected in para 12 of the leading application and para 13 of the connected application which is supported by the bank statements and the accounts maintained by the applicant, thus, no legally enforceable debt or liability stood attracted under Section 138 of the NI Act so as to invoke penal provisions. Contention is that once the entire payments were made by the applicant then in these circumstances, the total amount so shown to be reflected in the cheque which is alleged to be dishonored would not be the actual amount due so as to incur any debt or liability under Section 138 of the NI Act. Reliance has also been placed upon Section 56 of the NI Act. Secondly, it is argued that the present complaint is not maintainable as important and vital facts which goes to the root of the matter have been concealed. Once, it was within the knowledge of the complainant opposite party no. 2 that the payment stood made and there was nothing due then the disclosure of the said fact ought to have been made in the complaint. In absence the making any disclosure, the complaint was bound to fail. Reliance has been placed upon the judgment of Hon'ble Apex Court in Rohan and others Vs. State of Gujarat and another: 2025 SCC OnLine SC 1056, Prashant Bharti Vs. State of NCT of Delhi: 2013 (3) SCC (Cri) 920 and Praveen Singh and 3 others Vs. State of U.P. and another: 2023 (1) All LJ 754. It is also contended that actually Rs. 10,00,000/- was taken as a financial assistance and the applicant had made the entire payment in that regard. Learned counsel for the applicant further submits that in any case, if any, amount is due and payment, the same would be Rs. 15,650/- and not more than that. Thus, it is prayed that the summoning order be quashed.

7. Learned State Law Officer, on the other hand, submits that while countering the submission of the learned counsel for the applicant has submitted that whatever arguments are being sough to be made, they center around factual issues which are not required to be gone into at this stage of summoning particularly when what is relevant is the presumption under Section 139 of the NI Act.

8. I have heard the submissions so made across the bar and perused the record carefully.

9. The sole question which arises for determination in the present proceedings is the extent of judicial intervention at this stage. Apparently, two cheques for an amount of Rs. 1,00,000/- and 3,00,000/- which are subject matter of the leading and the connected applications came to be dishonored pursuant whereto a statutory demand notice was issued and in failing to make payment within 15 days, the complaint under Section 138 of the NI Act came to be lodged and then the applicant came to be summoned under Section 138 of the NI Act. Much reliance has been placed upon by the learned counsel for the applicant while referring to paragraph no. 12 in the leading application and paragraph no. 13 in the connected application so as to contend that the amount so reflected in the cheque which is stated to have been dishonored had already been paid, thus, there was no legally enforceable debt or liability in that regard.

10. Notably, the averments made in paragraphs of the application and also reliance placed upon the relevant extracts (pages of the accounts) would not suffice the purpose particularly when the same becomes a subject matter of trial as consideration whereof would be required at an appropriate stage when the trial commences. At the stage of summoning, the Court is not required to delve into factual issues. Moreover, once the cheque stood drawn and dishonored then the presumption under Section 139 of the NI Act would always be in favour of the cheque i.e., the complainant. As regards the submission of the learned counsel for the applicant that there had been virtual concealment of material facts regarding payment of the entire amounts while alleging that the total amount which was taken as loan was Rs. 10,00,000/- and the same stood paid of and the residue amount, if any, at best, would be 15,000/- and odd is concerned. This Court is not required to delve into the said issue. The question that there has been any material concealment at the end of the complainant would be a subject matter of trial and the same cannot be gone into at this stage in view of the documents which have been filed by the applicant in the leading and the connected application which are not convincible as they do not lead to the sole conclusion that there have been concealment and non-disclosure of the vital fact made in the complaint. So far as reliance placed upon the judgments Rohan (supra), Prashant Bharti (supra) and Praveen Singh (supra) are concerned there is no quarrel to the proposition of law laid down therein. However, the said judgments would not apply in the given case at the stage wherein the cheques have been dishonored and the challenge has been raised to the summoning order.

11. Analysing the case from four corners of law, the Court finds that the summoning order cannot be faulted with. Accordingly, no case is made out for interference, the applicant stands disposed of leaving it open to the applicant to contest the trial taking all legal and factual issues which are permissible and advisable under law and the Court has no reasons to disbelieve that the same shall be considered in accordance with law. Order Date :- 9.7.2025 Rajesh