High Court · 2025

well as Sri Sudhir Kumar Chandraul, learned AGA for State.

2. This application u/s 528 of BNSS has been preferred to quash the impugned order dated 04/12/2024 passed by the learned Additional Chief Judicial Magistrate, FTC, Farrukhabad in Complaint Case No.1370 of 2024 (Sri Laxmi Frozen Foods -Vs- Sandeep Frozen Foods & others), under section 138 of Negotiable Instruments Act, 1881 P.S. Qadri Gate, District Farrukhabad as well as impugned summoning order dated 09-05-2024 passed by the learned Additional Chief Judicial Magistrate, FTC, Farrukhabad in Complaint Case No.1370 of 2024 (Sri Laxmi Frozen Foods Vs- Sandeep Frozen Foods & others), under section 138 of Negotiable Instruments Act, 1881 P.S. Qadri Gate, District Farrukhabad as well as quash the entire proceedings of Complaint Case No.1370 of 2024 (Sri Laxmi Frozen Foods -Vs-Sandeep Frozen Foods & others), under section 138 of Negotiable Instruments Act, 1881 P.S. Qadri Gate, District Farrukhabad pending in the court of the learned Additional Chief Judicial Magistrate, FTC, Farrukhabad.

3. Learned counsel for the applicant has submitted that a complaint was filed by the opposite party no. 2 under Section 138 of the NI Act on 18.01.2024 with an allegation that with respect to discharge of a liability, the applicant herein had drawn a cheque bearing no. 933814 dated 08.12.2023 of an amount of Rs. 6,82,462/- which on presentation in the bank stood dishonored on 12.12.2023 followed by a statutory demand notice dated 02.01.2024 which came to be served upon the applicant on 04.01.2024 and the applicant was thereafter, summoned on 09.05.2024 under Section 138 of the NI Act. Thereafter, an application came to be preferred by the applicant on 04.12.2024 with a prayer that at the time of issuance and service of the summons, the notice did not accompany with the complaint and the list of witnesses. He, thus, submits that there has been an infraction of sub-section (3) of Section 204 of the Cr.P.C. An application seeking furnishing of the complaint and the list of witnesses came to be preferred by the applicant. The said application, according to the learned counsel for the applicant, came to be rejected on 04.12.2024 on the premise that the said application was preferred under the provisions of BNSS-2023 and not the provisions of Cr.P.C.

4. Learned counsel for the applicant at this stage submits that he confines his relief for the challenge raised to the order dated

04.12.2024 rejecting the application. He, further, submits that insofar as the summoning order is concerned, the question regarding jurisdiction of the Court would be raised at the appropriate time by the applicant by a separate proceedings at the appropriate stage.

5. Learned counsel for the applicant has submitted that the order dated 04.12.2024 passed by the court below cannot be sustained in the eyes of law particularly when though the application dated

04.12.2024 speaks about the provisions of BNSS-2023, however, the provisions of Section 204 of the Cr.P.C. as well as Section 227 of the BNSS-2023 are pari materia same. Sub-section (3) of Section 204 of the Cr.P.C. reads as under:- "In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint."

6. Apart from the same, sub-section (3) of Section 227 of the BNSS reads as under.- "In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint."

7. According to the learned counsel for the applicant, the application could not have been rejected on hyper technical ground particularly when mere recital of a wrong provision would not invalidate the application. He further submits that though the bailable warrants have been issued but now non-bailable warrants have been issued earlier.

8. At this stage, learned counsel for the applicant submits that the applicant shall be filing an appropriate application under the provisions of the Cr.P.C. with a prayer for furnishing of the complaint and the list of witnesses and also an application for recalling of the non-bailable warrants.

9. Learned AGA does not dispute the fact that provisions of sub- section (3) of Section 204 of the Cr.P.C. and sub-section (3) of Section 227 of the BNSS-2023 are pari materia same. He submits that it is for the applicant to file an application in accordance with the provisions and law.

10. Considering the submissions so made across the bar as well as the stand taken by the applicant, the application stands disposed of granting liberty to the applicant to prefer an appropriate application for furnishing of the complaint as well as the list of witnesses which according to the applicant has not been served along with the notice/recall application for recalling of the non- bailable warrants by 14.08.2025.

11. Till the application is decided, no coercive action shall be taken against the applicant with respect to the proceedings of Complaint Case No.1370 of 2024 (Sri Laxmi Frozen Foods -Vs- Sandeep Frozen Foods & others) under section 138 of Negotiable Instruments Act, 1881 P.S. Qadri Gate, District Farrukhabad, pending in the court of the learned Additional Chief Judicial Magistrate, FTC, Farrukhabad.

12. The protection accorded to the applicant is only available subject to compliance of the terms and conditions and timeline as provided herein and in case of default, the order shall stand vacated without reference to the Bench.

13. Needless to point out that it shall be open for the applicant to take legal recourse against the summoning order at an appropriate stage in accordance with law. Order Date :- 31.7.2025 Rajesh RAJESH KUMAR High Court of Judicature at Allahabad

well as Sri Sudhir Kumar Chandraul, learned AGA for State.

2. This application u/s 528 of BNSS has been preferred to quash the impugned order dated 04/12/2024 passed by the learned Additional Chief Judicial Magistrate, FTC, Farrukhabad in Complaint Case No.1370 of 2024 (Sri Laxmi Frozen Foods -Vs- Sandeep Frozen Foods & others), under section 138 of Negotiable Instruments Act, 1881 P.S. Qadri Gate, District Farrukhabad as well as impugned summoning order dated 09-05-2024 passed by the learned Additional Chief Judicial Magistrate, FTC, Farrukhabad in Complaint Case No.1370 of 2024 (Sri Laxmi Frozen Foods Vs- Sandeep Frozen Foods & others), under section 138 of Negotiable Instruments Act, 1881 P.S. Qadri Gate, District Farrukhabad as well as quash the entire proceedings of Complaint Case No.1370 of 2024 (Sri Laxmi Frozen Foods -Vs-Sandeep Frozen Foods & others), under section 138 of Negotiable Instruments Act, 1881 P.S. Qadri Gate, District Farrukhabad pending in the court of the learned Additional Chief Judicial Magistrate, FTC, Farrukhabad.

3. Learned counsel for the applicant has submitted that a complaint was filed by the opposite party no. 2 under Section 138 of the NI Act on 18.01.2024 with an allegation that with respect to discharge of a liability, the applicant herein had drawn a cheque bearing no. 933814 dated 08.12.2023 of an amount of Rs. 6,82,462/- which on presentation in the bank stood dishonored on 12.12.2023 followed by a statutory demand notice dated 02.01.2024 which came to be served upon the applicant on 04.01.2024 and the applicant was thereafter, summoned on 09.05.2024 under Section 138 of the NI Act. Thereafter, an application came to be preferred by the applicant on 04.12.2024 with a prayer that at the time of issuance and service of the summons, the notice did not accompany with the complaint and the list of witnesses. He, thus, submits that there has been an infraction of sub-section (3) of Section 204 of the Cr.P.C. An application seeking furnishing of the complaint and the list of witnesses came to be preferred by the applicant. The said application, according to the learned counsel for the applicant, came to be rejected on 04.12.2024 on the premise that the said application was preferred under the provisions of BNSS-2023 and not the provisions of Cr.P.C.

4. Learned counsel for the applicant at this stage submits that he confines his relief for the challenge raised to the order dated

04.12.2024 rejecting the application. He, further, submits that insofar as the summoning order is concerned, the question regarding jurisdiction of the Court would be raised at the appropriate time by the applicant by a separate proceedings at the appropriate stage.

5. Learned counsel for the applicant has submitted that the order dated 04.12.2024 passed by the court below cannot be sustained in the eyes of law particularly when though the application dated

04.12.2024 speaks about the provisions of BNSS-2023, however, the provisions of Section 204 of the Cr.P.C. as well as Section 227 of the BNSS-2023 are pari materia same. Sub-section (3) of Section 204 of the Cr.P.C. reads as under:- "In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint."

6. Apart from the same, sub-section (3) of Section 227 of the BNSS reads as under.- "In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint."

7. According to the learned counsel for the applicant, the application could not have been rejected on hyper technical ground particularly when mere recital of a wrong provision would not invalidate the application. He further submits that though the bailable warrants have been issued but now non-bailable warrants have been issued earlier.

8. At this stage, learned counsel for the applicant submits that the applicant shall be filing an appropriate application under the provisions of the Cr.P.C. with a prayer for furnishing of the complaint and the list of witnesses and also an application for recalling of the non-bailable warrants.

9. Learned AGA does not dispute the fact that provisions of sub- section (3) of Section 204 of the Cr.P.C. and sub-section (3) of Section 227 of the BNSS-2023 are pari materia same. He submits that it is for the applicant to file an application in accordance with the provisions and law.

10. Considering the submissions so made across the bar as well as the stand taken by the applicant, the application stands disposed of granting liberty to the applicant to prefer an appropriate application for furnishing of the complaint as well as the list of witnesses which according to the applicant has not been served along with the notice/recall application for recalling of the non- bailable warrants by 14.08.2025.

11. Till the application is decided, no coercive action shall be taken against the applicant with respect to the proceedings of Complaint Case No.1370 of 2024 (Sri Laxmi Frozen Foods -Vs- Sandeep Frozen Foods & others) under section 138 of Negotiable Instruments Act, 1881 P.S. Qadri Gate, District Farrukhabad, pending in the court of the learned Additional Chief Judicial Magistrate, FTC, Farrukhabad.

12. The protection accorded to the applicant is only available subject to compliance of the terms and conditions and timeline as provided herein and in case of default, the order shall stand vacated without reference to the Bench.

13. Needless to point out that it shall be open for the applicant to take legal recourse against the summoning order at an appropriate stage in accordance with law. Order Date :- 31.7.2025 Rajesh RAJESH KUMAR High Court of Judicature at Allahabad