Govind Madhav Proprietor v. Proprietor Ayush Proprietor Traders Indu Devi) as well as summoning order

1. Heard Sri Satyendra Kumar Tripathi, learned counsel for the applicant as well as Sri Moti Lal, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the entire proceeding of Complaint 2023 (Govind Madhav Proprietor Vs. Proprietor Ayush Proprietor Traders Indu Devi) as well as summoning order dated 1.12.2023 and Non Bailable Warrant dated

2.5.2024 and Proceeding 82 Cr.P.C. dated 16.12.2024 passed by Chief Judicial Magistrate, Siddharth Nagar under section 138 Negotiable Instrument Act, Police Station- Siddharth Nagar, District- Siddharth Nagar, pending in the court of Chief Judicial Magistrate, Siddharth Nagar.

3. The case of the applicant is that a complaint stood lodged on 28.03.2023 by the O.P. No.2 under Section 138 of N.I. Act against the applicant with an allegation that with respect to discharge of a liability, the applicant herein had drawn a cheque bearing number "240070" dated 28.02.2023 for an amount Rs.12,16,455/-, which on presentation in the bank on 28.02.2023 came to be dishonoured followed by a statutory demand notice dated

04.03.2023 and a complaint and thereafter the applicant came to be summoned on 01.12.2023 under Section 138 of the N.I. Act. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reasons, firstly, the cheque in question was a security cheque, it was unsigned, undated and blank, however, the same has been misutilized by O.P. No.2 while making the signatures of the applicant 2 NA528 No. 33456 of 2025 and filling the amount in words and figures. Thus, it does not answer the description of Section 138 of the N.I. Act and secondly, the applicant has already obtained opinion of the hand-writing expert, pursuant whereto it has been opined that the signatures are not that of the applicant. He seeks to rely upon the decision of the Hon'ble Apex Court in Jugesh Sehgal vs. Shamsher Singh Gogi, 2009(5) Supreme 320.

4. Learned A.G.A. 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 there.

5. I have heard the submissions so made across the Bar and perused the record carefully.

6. Apparently, the complaint stood lodged on 28.03.2023 against the applicant with respect to dishonour of a cheque of an amount of Rs.1216455/-. The first question which arises for determination is whether at the stage of summoning the aspect relating to the fact whether the cheque was a security cheque and whether it answers the description of a liability, as per the provisions contained under Section 138 of the N.I. Act, the said issue is no more res-integra, as the same is a subject matter of trial as held by the Hon'ble Apex Court in M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another, (2022) 18 SCC 631, in which the Hon'ble Apex Court had the occasion to consider the issue as to whether the determination can be done at the stage of summoning when the allegation that the cheque was a security cheque is concerned. The Hon'ble Apex Court 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." 3 NA528 No. 33456 of 2025

7. The aforesaid law has been followed subsequently in Sunil Todi and others vs. State of Gujarat, (2022) 16 SCC 762.

8. As regards the judgment of the Hon'ble Apex Court in the case of Jugesh Sehgal (supra), the same would not apply in the present case.

9. As regards the second submission of the applicant that the applicant has already obtained an expert opinion of the hand writing expert that the signature of the cheque was not of the applicant, suffice is to say that there is no order of the Court either under Section 91 of the CrPC or Section 94 of the BNSS for calling of the said report. The said report may be of assistance to the applicant as a matter of defence, which can be pleaded before the court below when the trial commences, and even infact the expert opinion report may be obtained in that regard. Nonetheless, there is a redeeming feature that the cheque has not been dishonoured on the ground of mismatch of signature, but on account of insufficiency of the fund. At this stage, learned counsel for the applicant has submitted that on 02.05.2024, non- bailable warrant was issued and the applicant had obtained bail on

13.06.2024 and thereafter, on 16.12.2024, Section 82 CrPC proceeding was directed to be held and the applicant could not appear before the court below for certain reasons beyond the control and comprehension, thus the applicant seeks a breathing period to file recall application seeking recall of the non- bailable warrant.

10. Accordingly, interference is declined. The application is disposed of leaving it open to the applicant to contest the proceedings before the court below while taking all the legal and factual grounds and this Court has no reason to disbelieve that the court below shall consider the same in correct perspective. It is further provided that in case the applicant prefers a recall application recalling the non-bailable warrant, by 26.09.2025, no coercive action shall be taken against the applicant in the aforesaid case. September 11, 2025 N.S.Rathour (Vikas Budhwar,J.)

1. Heard Sri Satyendra Kumar Tripathi, learned counsel for the applicant as well as Sri Moti Lal, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the entire proceeding of Complaint 2023 (Govind Madhav Proprietor Vs. Proprietor Ayush Proprietor Traders Indu Devi) as well as summoning order dated 1.12.2023 and Non Bailable Warrant dated

2.5.2024 and Proceeding 82 Cr.P.C. dated 16.12.2024 passed by Chief Judicial Magistrate, Siddharth Nagar under section 138 Negotiable Instrument Act, Police Station- Siddharth Nagar, District- Siddharth Nagar, pending in the court of Chief Judicial Magistrate, Siddharth Nagar.

3. The case of the applicant is that a complaint stood lodged on 28.03.2023 by the O.P. No.2 under Section 138 of N.I. Act against the applicant with an allegation that with respect to discharge of a liability, the applicant herein had drawn a cheque bearing number "240070" dated 28.02.2023 for an amount Rs.12,16,455/-, which on presentation in the bank on 28.02.2023 came to be dishonoured followed by a statutory demand notice dated

04.03.2023 and a complaint and thereafter the applicant came to be summoned on 01.12.2023 under Section 138 of the N.I. Act. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reasons, firstly, the cheque in question was a security cheque, it was unsigned, undated and blank, however, the same has been misutilized by O.P. No.2 while making the signatures of the applicant 2 NA528 No. 33456 of 2025 and filling the amount in words and figures. Thus, it does not answer the description of Section 138 of the N.I. Act and secondly, the applicant has already obtained opinion of the hand-writing expert, pursuant whereto it has been opined that the signatures are not that of the applicant. He seeks to rely upon the decision of the Hon'ble Apex Court in Jugesh Sehgal vs. Shamsher Singh Gogi, 2009(5) Supreme 320.

4. Learned A.G.A. 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 there.

5. I have heard the submissions so made across the Bar and perused the record carefully.

6. Apparently, the complaint stood lodged on 28.03.2023 against the applicant with respect to dishonour of a cheque of an amount of Rs.1216455/-. The first question which arises for determination is whether at the stage of summoning the aspect relating to the fact whether the cheque was a security cheque and whether it answers the description of a liability, as per the provisions contained under Section 138 of the N.I. Act, the said issue is no more res-integra, as the same is a subject matter of trial as held by the Hon'ble Apex Court in M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another, (2022) 18 SCC 631, in which the Hon'ble Apex Court had the occasion to consider the issue as to whether the determination can be done at the stage of summoning when the allegation that the cheque was a security cheque is concerned. The Hon'ble Apex Court 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." 3 NA528 No. 33456 of 2025

7. The aforesaid law has been followed subsequently in Sunil Todi and others vs. State of Gujarat, (2022) 16 SCC 762.

8. As regards the judgment of the Hon'ble Apex Court in the case of Jugesh Sehgal (supra), the same would not apply in the present case.

9. As regards the second submission of the applicant that the applicant has already obtained an expert opinion of the hand writing expert that the signature of the cheque was not of the applicant, suffice is to say that there is no order of the Court either under Section 91 of the CrPC or Section 94 of the BNSS for calling of the said report. The said report may be of assistance to the applicant as a matter of defence, which can be pleaded before the court below when the trial commences, and even infact the expert opinion report may be obtained in that regard. Nonetheless, there is a redeeming feature that the cheque has not been dishonoured on the ground of mismatch of signature, but on account of insufficiency of the fund. At this stage, learned counsel for the applicant has submitted that on 02.05.2024, non- bailable warrant was issued and the applicant had obtained bail on

13.06.2024 and thereafter, on 16.12.2024, Section 82 CrPC proceeding was directed to be held and the applicant could not appear before the court below for certain reasons beyond the control and comprehension, thus the applicant seeks a breathing period to file recall application seeking recall of the non- bailable warrant.

10. Accordingly, interference is declined. The application is disposed of leaving it open to the applicant to contest the proceedings before the court below while taking all the legal and factual grounds and this Court has no reason to disbelieve that the court below shall consider the same in correct perspective. It is further provided that in case the applicant prefers a recall application recalling the non-bailable warrant, by 26.09.2025, no coercive action shall be taken against the applicant in the aforesaid case. September 11, 2025 N.S.Rathour (Vikas Budhwar,J.)