Allahabad High Court
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 9501 of 2025 Bihari Lal Agarwal State of U.P. and Another Versus .....Applicant(s) .....Opposite Party(s) Counsel for Applicant(s) Counsel for Opposite Party(s) : Gaurav Pundir, Jully Ojha, Sr. Advocate : G.A., Maneesh Kumar, Vivek Pandey Court No. - 75 HON'BLE VIKAS BUDHWAR, J.
Legal Reasoning
1. Heard Sri Gaurav Pundir learned counsel for the applicants as well as Sri Motilal, learned AGA for the State. 2. This application u/s 528 of BNSS has been preferred to quash the entire proceedings of complaint case No. 67 of 2024, M/s Agarwal Motors Vs. Bihari Lal Agarwal, under Section 138 of N.I. Act, Police Station Bannadevi, District Aligarh, pending in the Court of Presiding Officer, Additional Court, District -Aligarh as well as summoning order dated 11.06.2024. 3. The case of the applicant is that on 24.01.2024 a complaint stood lodged by the opposite party no. 2 against the applicant under Section 138 of the NI Act with an allegation that there happens to be a business relationship between the applicant and the opposite party no. 2 regarding purchase of vehicles. Allegation in the complaint is that with respect to discharge of liability three cheques bearing no. 236737, 236738, 236739 had drawn on 25.09.2023 of an amount of Rs. 4,00,000/- which on presentation in the bank came to be dishonored on 12.12.2018 followed by a statutory demand notice dated 18.12.2023 and the complaint under Section 138 of the NI Act on 24.01.2024 and the applicant came to be summoned on 11.06.2024. Learned counsel for the applicant has submitted that as a matter of fact there is no legal debt or liability so as to invoke the provisions of Section 138 of the NI Act for the simple reason that the son of applicant namely Kuldeep Agarwal and the complainant were doing business of purchasing and selling of old cars from the same office and the son of the applicant namely Kuldeep Agarwal is doing business in the name of Fatafat Finance he provides finance to the customer and the complainant in the same office is also doing business in the name of Agarwal Motors. According to him, there happened 2 NA528 No. 9501 of 2025 to be certain blank cheques which were signed in the drawer which came to be mis-utilized by the applicant while getting them filled up in words and figures and presenting the same in the bank pursuant whereto the same stood dishonored. Submission is that the accounts of the cheque which is being stated to have been dishonored have been closed since 2018 and further the said cheques stood mis-utilized in such a manner so as to not only lodge criminal proceedings against the applicant but also against the relative of the applicant. He has also invited attention of the Court towards a first information report lodged by the opposite party no. 2 on 24.10.2024 under Sections 351(3), 351(2), 352, 342, 336(3), 338, 316(3) and 318(4) relatable to dishonoring of three other cheques of an amount of Rs. 4,09,111/-. Submission is that the applicant has been falsely implicated, he has not committed the offence in that regard. 4. Learned AGA as well as counsel for the opposite party no. 2 , on the other hand, submits that at the stage of summoning what would be relevant is the drawing of the cheque and the dishonoring. The question whether the said cheques were mis-utilized or not is a subject matter of trial consideration whereof would be required if raised at the time when the trial commences. 5. I have heard the submission so made across the bar and perused the record. 6. Apparently, allegation is with regard to drawing of a cheque which stood dishonored which are three in number followed by a cheque, the statutory demand notice. On a pointed query being raised to the learned counsel for the applicant whether there happens to be any procedural infirmity with regard to the compliance of the provisions contained under Section 138 read with Section 142 of the NI Act, the answer is in negative. As regards the submission of the learned counsel for the applicant that the said cheques were stolen, mis-utilized, the same is at best a matter of defence consideration whereof is not required to be gone into as it means leading of evidence which can only be done when the trial commences. The question whether dishonoring of a cheque on the basis that the account stood closed would come within the ambit of Section 138 of the NI Act came up for consideration before the Hon'ble Apex Court in M/s. Laxmi Dyechem Vs. State of Gujarat and others) : 2012 (13) SCC 375, in para 16 has observed as under.- "16. In the case at hand, the High Court relied upon a decision of this Court in Vinod Tanna’s case (supra) in support of its view. We have carefully gone through the said decision which relies upon the decision of this Court in Electronics Trade & Technology Development Corporation Ltd. (supra). The view expressed by this Court in 3 NA528 No. 9501 of 2025 Electronics Trade & Technology Development Corporation Ltd. (supra) that a dishonour of the cheque by the drawer after issue of a notice to the holder asking him not to present a cheque would not attract Section 138 has been specifically overruled in Modi Cements Ltd. case (supra). The net effect is that dishonour on the ground that the payment has been stopped, regardless whether such stoppage is with or without notice to the drawer, and regardless whether the stoppage of payment is on the ground that the amount lying in the account was not sufficient to meet the requirement of the cheque, would attract the provisions of Section 138." 7. Moreover presumption under Section 139 of the NI Act would be there.
Decision
8. Accordingly, interference is declined, the application stands disposed of leaving it open for the applicant to take all legal and factual contentions while contesting the proceedings. September 12, 2025 Rajesh (Vikas Budhwar,J.) Digitally signed by :- RAJESH KUMAR High Court of Judicature at Allahabad