Akshay Kumar Patel v. State of U.P. and another) and order dated

1. Heard Sri Syed Fahim Ahmed, learned counsel for the applicant and Sri Moti Lal learned AGA for the State.

2. This is an application filed under Section 528 of the B.N.S.S. for quashing the effect and operation of the impugned order dated 25.7.2025 passed by the Additional District and Sessions Judge/Special Judge (POCSO Act), Court No.2, Varanasi in Criminal Revision No.106 of 2025 (Akshay Kumar Patel Vs. State of U.P. and another) and order dated 24.1.2025 passed the Civil Judge (Senior Division)/Fast Track Court, Varanasi in Complaint Case No.93494 by of 2024:Manish Kumar Chaubey Vs. Akshay Kumar Patel, under section 138 of Negotiable Instrument Act, Police Station Lalpur/Pandepur, District Varanasi, Pending before the Civil Judge (Senior Division)/Fast Track Court, Varanasi and further be pleased to stay the further proceedings of Complaint Case No.93494 of 2024:Manish Kumar Chaubey Vs. Akshay Kumar Patel, under section 138 of Negotiable Instrument Act, Police Station Lalpur/Pandepur, District Varanasi, Pending before the Civil Judge (Senior Division)/Fast Track Court, Varanasi,

3. The case of the applicant is that a complaint was lodged by the opposite party No. 2 on 25.11.2024 under section 138 of the N.I. Act with an allegation that the applicant herein is a owner of plot of land and pursuant to an agreement for a purchase of the said land the opposite party no.2 had paid an amount of Rs. 10 lakhs, however, the applicant herein did not get the sale deed registered and sold the said property to somebody else and when the amount was requested to be refunded, the applicant herein had drawn a cheque of Rs. 10 lakhs bearing No. 015656 dated 1.10.2024 and when the same was presented in the bank on 28.10.2024, it was dishonoured on 30.10.2024 followed by a statutory demand notice and the complaint pursuant whereto the applicant was summoned under section 138 of the N.I. Act on 24.01.2025 against which a revision was preferred 2 NA528 No. 33987 of 2025 which was rejected on 25.07.2025.

4. Questioning both the orders, the present application has been preferred.

5. Learned counsel for the applicant has submitted that the summoning order as well as the revisional order upholding the summoning order cannot be sustained for the simple reason that in case of any amount advanced and in order to repay the said amount, a cheque stands drawn and is dishonoured it does not come within the definition of legal enforceable debt or other liability under section 138 of the N.I. Act. He has further submitted that since Rs. 10 lakhs was advanced by the opposite party No.2 for purchasing a property and once a cheque so issued by the applicant for the refund of the said amounts gets dishonoured, then no liability occurs, so as to invoke the provisions of section 138 of the N.I. Act in view of the judgment of the Hon. Apex Court in Indus Airways Pvt. Ltd. and others v. Magnum Aviation Pvt. Ltd. and others, 2014 (12) SCC 539. It is also contended that the said cheque, stood lost and a complaint was lodged to the police station on 20.10.2024 which was recorded in GD No.026 and on next day that is 21.10.2024, the Branch Manager was told to block the said cheque and in newspaper publication was made on 22.10.2024. It is also contended that the opposite party No.2 is a lawyer by profession practicing in district judgeship and he has misutilised the cheques by filing successive complaints.

6. Learned AGA on the other hand submits that once the cheques stood drawn and it was dishonoured that the presumption under section 139 of the N.I. Act would be there.

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

8. Apparently, the allegation in the complaint is with regard to drawing of a cheque bearing No. 015656 dated 1.10.2024 which on presentation in the bank came to be dishonoured on 30.10.2024 followed by a statutory demand notice and the complaint. The complaint further alleges that Rs.10 lakhs was given to the applicant with regard to purchase of the property. As a matter of fact, once the cheque stood drawn by the opposite party No. 2 to discharge its liability and the same was dishonoured then the presumption under section 139 of the N.I. Act would be there. Even otherwise, the case so relied upon by the applicant, Indus Airways Pvt. Ltd.(supra) does not support the case of the applicant as in the said case, certain post dated cheques were drawn with regard to certain purchase orders, however, the said purchase orders came to be cancelled. Thus, the Court was of the opinion that no legal enforceable debt or liability was there.

9. Here in the present case, the applicant had drawn a cheque in order to 3 NA528 No. 33987 of 2025 discharge his liability for the payment so taken from the opposite party No.2, thus, the question of advance payment does not arise. In any way of the matter, even if the argument of the applicant is also taken to the extent that it was a security cheque, then too it is a subject matter of trial. Nonetheless, the theory sought to be propounded by the applicant that the said cheque stood misplaced/lost and a complaint was lodged before the police on 20.10.2024 which stands reported in the G.D. report and on 21.10.2024, a letter was issued for blocking of the account to the bank followed by newspaper publication on 22.10.2024 is concerned, the same is a subject matter of defence particularly when the cheque is stated to have been issued on 1.10.2024. Thus, whatever arguments are being sought to be raised, they being defence, are liable to be taken when the trial commences. Moreover, presumption under section 139 of the N.I. Act would be there.

10. 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. September 8, 2025/piyush (Vikas Budhwar,J.)

1. Heard Sri Syed Fahim Ahmed, learned counsel for the applicant and Sri Moti Lal learned AGA for the State.

2. This is an application filed under Section 528 of the B.N.S.S. for quashing the effect and operation of the impugned order dated 25.7.2025 passed by the Additional District and Sessions Judge/Special Judge (POCSO Act), Court No.2, Varanasi in Criminal Revision No.106 of 2025 (Akshay Kumar Patel Vs. State of U.P. and another) and order dated 24.1.2025 passed the Civil Judge (Senior Division)/Fast Track Court, Varanasi in Complaint Case No.93494 by of 2024:Manish Kumar Chaubey Vs. Akshay Kumar Patel, under section 138 of Negotiable Instrument Act, Police Station Lalpur/Pandepur, District Varanasi, Pending before the Civil Judge (Senior Division)/Fast Track Court, Varanasi and further be pleased to stay the further proceedings of Complaint Case No.93494 of 2024:Manish Kumar Chaubey Vs. Akshay Kumar Patel, under section 138 of Negotiable Instrument Act, Police Station Lalpur/Pandepur, District Varanasi, Pending before the Civil Judge (Senior Division)/Fast Track Court, Varanasi,

3. The case of the applicant is that a complaint was lodged by the opposite party No. 2 on 25.11.2024 under section 138 of the N.I. Act with an allegation that the applicant herein is a owner of plot of land and pursuant to an agreement for a purchase of the said land the opposite party no.2 had paid an amount of Rs. 10 lakhs, however, the applicant herein did not get the sale deed registered and sold the said property to somebody else and when the amount was requested to be refunded, the applicant herein had drawn a cheque of Rs. 10 lakhs bearing No. 015656 dated 1.10.2024 and when the same was presented in the bank on 28.10.2024, it was dishonoured on 30.10.2024 followed by a statutory demand notice and the complaint pursuant whereto the applicant was summoned under section 138 of the N.I. Act on 24.01.2025 against which a revision was preferred 2 NA528 No. 33987 of 2025 which was rejected on 25.07.2025.

4. Questioning both the orders, the present application has been preferred.

5. Learned counsel for the applicant has submitted that the summoning order as well as the revisional order upholding the summoning order cannot be sustained for the simple reason that in case of any amount advanced and in order to repay the said amount, a cheque stands drawn and is dishonoured it does not come within the definition of legal enforceable debt or other liability under section 138 of the N.I. Act. He has further submitted that since Rs. 10 lakhs was advanced by the opposite party No.2 for purchasing a property and once a cheque so issued by the applicant for the refund of the said amounts gets dishonoured, then no liability occurs, so as to invoke the provisions of section 138 of the N.I. Act in view of the judgment of the Hon. Apex Court in Indus Airways Pvt. Ltd. and others v. Magnum Aviation Pvt. Ltd. and others, 2014 (12) SCC 539. It is also contended that the said cheque, stood lost and a complaint was lodged to the police station on 20.10.2024 which was recorded in GD No.026 and on next day that is 21.10.2024, the Branch Manager was told to block the said cheque and in newspaper publication was made on 22.10.2024. It is also contended that the opposite party No.2 is a lawyer by profession practicing in district judgeship and he has misutilised the cheques by filing successive complaints.

6. Learned AGA on the other hand submits that once the cheques stood drawn and it was dishonoured that the presumption under section 139 of the N.I. Act would be there.

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

8. Apparently, the allegation in the complaint is with regard to drawing of a cheque bearing No. 015656 dated 1.10.2024 which on presentation in the bank came to be dishonoured on 30.10.2024 followed by a statutory demand notice and the complaint. The complaint further alleges that Rs.10 lakhs was given to the applicant with regard to purchase of the property. As a matter of fact, once the cheque stood drawn by the opposite party No. 2 to discharge its liability and the same was dishonoured then the presumption under section 139 of the N.I. Act would be there. Even otherwise, the case so relied upon by the applicant, Indus Airways Pvt. Ltd.(supra) does not support the case of the applicant as in the said case, certain post dated cheques were drawn with regard to certain purchase orders, however, the said purchase orders came to be cancelled. Thus, the Court was of the opinion that no legal enforceable debt or liability was there.

9. Here in the present case, the applicant had drawn a cheque in order to 3 NA528 No. 33987 of 2025 discharge his liability for the payment so taken from the opposite party No.2, thus, the question of advance payment does not arise. In any way of the matter, even if the argument of the applicant is also taken to the extent that it was a security cheque, then too it is a subject matter of trial. Nonetheless, the theory sought to be propounded by the applicant that the said cheque stood misplaced/lost and a complaint was lodged before the police on 20.10.2024 which stands reported in the G.D. report and on 21.10.2024, a letter was issued for blocking of the account to the bank followed by newspaper publication on 22.10.2024 is concerned, the same is a subject matter of defence particularly when the cheque is stated to have been issued on 1.10.2024. Thus, whatever arguments are being sought to be raised, they being defence, are liable to be taken when the trial commences. Moreover, presumption under section 139 of the N.I. Act would be there.

10. 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. September 8, 2025/piyush (Vikas Budhwar,J.)