Pankaj Bansal v. Anil Kumar Singh), under Section

Applicant :- Anil Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Atul Kumar Shahi,Sumit Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.

1. Heard Sri Atul Kumar Shahi, learned counsel for the applicant as well as Sri Vikas Sharma, learned State Law Officer for the State/opposite party no.1.

2. This application under Section 528 of the BNSS has been filed by the applicant to quash the summoning order dated 9.2.2018 as well as entire proceedings in Complaint Case No.1389 of 2017, (New No.1559 of 2021), (Pankaj Bansal Vs. Anil Kumar Singh), under Section 138 of the N.I. Act, pending in the Court of Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No.2, District Ghaziabad.

3. Learned counsel for the applicant has submitted that a complaint was lodged on 29.11.2017 by the opposite party no.2 against the applicant that with respect to a purchase of a flat, the complainant has alleged that he was introduced to the applicant and a deal stood finalized being the sale consideration of a flat to the tune of Rs.50 lakhs. A cheque the amount of Rs.18 lakhs was paid in advance through R.T.G.S. on 5.6.2015 and before the date of sale deed, the rest Rs. 32 lakhs was to be paid.

4. As per the complaint, however, due to change circumstances, as per the averments contained in paragraph 8 of the complaint, against the outstanding dues of Rs. 18 lakhs which was liable to be paid by the applicant to the opposite party no.2, three cheques bearing no. 000828 of Rs. 42 lakhs dated 1.9.2017, cheque no. 000830 of Rs. 1,50,000 dated 5.10.2017 and cheque no. 000831 of Rs. 1,50,000 dated 15.10.2017 was drawn by the applicant in favour of the opposite party no. 2. However, the said cheque stood dishonoured, pursuant whereto a statutory demand notice was issued on 26.10.2017 which was served upon the applicant on 28.10.2017 and the complaint was lodged on 29.11.2017. The court thereafter summoned the applicant under section 138 of the N.I. Act.

5. Learned counsel for the applicant submits that there is no legal enforceable debt or liability upon the applicant particularly in view of the allegations contained in the complaint that against the amount due and payable being Rs 18 lakhs which is stated to have been paid by mode of R.T.G.S. by the opposite party no.2 to the applicant how could the amount be liable to be of Rs. 45 lakhs. It is submitted that on the face of the aforesaid facts as exhibited from the complaint, it becomes apparently clear that the cheques have been misutilised and misused just in order to lodge proceedings under Section 138 of the N.I. Act. He submits that no prudent person could even visualise the said fact that such a huge amount would be paid of Rs 45 lakhs against the alleged dues of Rs 18 lakhs is due and liable to be paid.

6. Learned counsel for the applicant has also invited the attention of the court towards the fact that a first information report has also been lodged by the opposite party no.2 against the applicant and others under Sections 406 and 420 being FIR no. 1901 on 18.7.2017 wherein the issue relatable to the payability of Rs. 18 lakhs as a due which was liable to be paid by the applicant to the opposite party no.2 has been narrated touching the issues which are also subject matter in the complaint.

7. Learned counsel for the applicant further submits that an Application U/S 482 No. 1216 of 2019, Anil Kumar v. State of U.P. was preferred by the applicant herein in which further proceedings in the said case was stayed. It is thus prayed that the summing order be quashed.

8. Learned AGA on the other hand submits that from the perusal of the order sheet, it appears that on 6.6.2018 page 73 of the paper book non-bailable warrants have been issued and further cross- examination of the opposite party no. 2 has also been done and the proceedings are underway. He also submits that the opposite party no. 2 has also preferred Application U/S 482 No. 22682 of 2024, Pankaj Bansal v. State of U.P. wherein there is a direction for deciding the complaint within the time bound period as per Section 143(3) of the N.I. Act.

9. I have heard the submissions so made across the bar and perused the record carefully. Apparently a complaint stood lodged regarding dishonouring of the cheques, a statutory legal notice was issued and served upon the applicant. The contention of the learned counsel for the applicant that the total amount due and payable given as per the case of the opposite party number 2 is Rs.18 lakhs. However, the cheques have been shown to be of an amount of Rs.45 lakhs which is stated to be dishonoured. There cannot be a basis for initiating of proceedings under Section 138 of the N.I. Act and thus the summoning order be se aside. Though the said argument appears to be attractive but it is not liable to be accepted for the simple reason that the question as to whether the amount of Rs. 45 lakhs were actually due or not or the liability was of Rs.18 lakhs is a subject matter of trial and this Court is not required to delve into the same issue at this stage. Apart from the same, this Court at this stage is not required to throttle the proceedings in the background of the fact that presumption under Section 139 N.I. Act is in favour of the holder.

10. Even otherwise, the Court finds that the trial is going on and there happens to be an order obtained by the opposite party no.2 before this Court and the order sheet reveals that the stage of cross-examination is also there. Once the position being so, this court at the present stage where as per the own saying of the applicant, the summoning orders is of 19.2.2018 is not required to interfere at the instance of the applicant in the year 2025. There is no explanation regarding the delay caused in approaching this court.

11. On a pointed query being raised to the learned counsel for the applicant as to whether cross-examination has been done or not and the proceedings is underway or not, learned counsel for the applicant has made a statement at bar that the proceedings are underway and the cross-examination has been done.

12. Accordingly, no case is made out for interference. The application is rejected.

13. Needless to point out that it shall always be open for the applicants to take all legal and factual pleas which are available and permissible under law and the court has no reasons to disbelieve that the same shall be decided in correct perspective. Order Date :- 8.5.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad

Applicant :- Anil Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Atul Kumar Shahi,Sumit Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.

1. Heard Sri Atul Kumar Shahi, learned counsel for the applicant as well as Sri Vikas Sharma, learned State Law Officer for the State/opposite party no.1.

2. This application under Section 528 of the BNSS has been filed by the applicant to quash the summoning order dated 9.2.2018 as well as entire proceedings in Complaint Case No.1389 of 2017, (New No.1559 of 2021), (Pankaj Bansal Vs. Anil Kumar Singh), under Section 138 of the N.I. Act, pending in the Court of Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No.2, District Ghaziabad.

3. Learned counsel for the applicant has submitted that a complaint was lodged on 29.11.2017 by the opposite party no.2 against the applicant that with respect to a purchase of a flat, the complainant has alleged that he was introduced to the applicant and a deal stood finalized being the sale consideration of a flat to the tune of Rs.50 lakhs. A cheque the amount of Rs.18 lakhs was paid in advance through R.T.G.S. on 5.6.2015 and before the date of sale deed, the rest Rs. 32 lakhs was to be paid.

4. As per the complaint, however, due to change circumstances, as per the averments contained in paragraph 8 of the complaint, against the outstanding dues of Rs. 18 lakhs which was liable to be paid by the applicant to the opposite party no.2, three cheques bearing no. 000828 of Rs. 42 lakhs dated 1.9.2017, cheque no. 000830 of Rs. 1,50,000 dated 5.10.2017 and cheque no. 000831 of Rs. 1,50,000 dated 15.10.2017 was drawn by the applicant in favour of the opposite party no. 2. However, the said cheque stood dishonoured, pursuant whereto a statutory demand notice was issued on 26.10.2017 which was served upon the applicant on 28.10.2017 and the complaint was lodged on 29.11.2017. The court thereafter summoned the applicant under section 138 of the N.I. Act.

5. Learned counsel for the applicant submits that there is no legal enforceable debt or liability upon the applicant particularly in view of the allegations contained in the complaint that against the amount due and payable being Rs 18 lakhs which is stated to have been paid by mode of R.T.G.S. by the opposite party no.2 to the applicant how could the amount be liable to be of Rs. 45 lakhs. It is submitted that on the face of the aforesaid facts as exhibited from the complaint, it becomes apparently clear that the cheques have been misutilised and misused just in order to lodge proceedings under Section 138 of the N.I. Act. He submits that no prudent person could even visualise the said fact that such a huge amount would be paid of Rs 45 lakhs against the alleged dues of Rs 18 lakhs is due and liable to be paid.

6. Learned counsel for the applicant has also invited the attention of the court towards the fact that a first information report has also been lodged by the opposite party no.2 against the applicant and others under Sections 406 and 420 being FIR no. 1901 on 18.7.2017 wherein the issue relatable to the payability of Rs. 18 lakhs as a due which was liable to be paid by the applicant to the opposite party no.2 has been narrated touching the issues which are also subject matter in the complaint.

7. Learned counsel for the applicant further submits that an Application U/S 482 No. 1216 of 2019, Anil Kumar v. State of U.P. was preferred by the applicant herein in which further proceedings in the said case was stayed. It is thus prayed that the summing order be quashed.

8. Learned AGA on the other hand submits that from the perusal of the order sheet, it appears that on 6.6.2018 page 73 of the paper book non-bailable warrants have been issued and further cross- examination of the opposite party no. 2 has also been done and the proceedings are underway. He also submits that the opposite party no. 2 has also preferred Application U/S 482 No. 22682 of 2024, Pankaj Bansal v. State of U.P. wherein there is a direction for deciding the complaint within the time bound period as per Section 143(3) of the N.I. Act.

9. I have heard the submissions so made across the bar and perused the record carefully. Apparently a complaint stood lodged regarding dishonouring of the cheques, a statutory legal notice was issued and served upon the applicant. The contention of the learned counsel for the applicant that the total amount due and payable given as per the case of the opposite party number 2 is Rs.18 lakhs. However, the cheques have been shown to be of an amount of Rs.45 lakhs which is stated to be dishonoured. There cannot be a basis for initiating of proceedings under Section 138 of the N.I. Act and thus the summoning order be se aside. Though the said argument appears to be attractive but it is not liable to be accepted for the simple reason that the question as to whether the amount of Rs. 45 lakhs were actually due or not or the liability was of Rs.18 lakhs is a subject matter of trial and this Court is not required to delve into the same issue at this stage. Apart from the same, this Court at this stage is not required to throttle the proceedings in the background of the fact that presumption under Section 139 N.I. Act is in favour of the holder.

10. Even otherwise, the Court finds that the trial is going on and there happens to be an order obtained by the opposite party no.2 before this Court and the order sheet reveals that the stage of cross-examination is also there. Once the position being so, this court at the present stage where as per the own saying of the applicant, the summoning orders is of 19.2.2018 is not required to interfere at the instance of the applicant in the year 2025. There is no explanation regarding the delay caused in approaching this court.

11. On a pointed query being raised to the learned counsel for the applicant as to whether cross-examination has been done or not and the proceedings is underway or not, learned counsel for the applicant has made a statement at bar that the proceedings are underway and the cross-examination has been done.

12. Accordingly, no case is made out for interference. The application is rejected.

13. Needless to point out that it shall always be open for the applicants to take all legal and factual pleas which are available and permissible under law and the court has no reasons to disbelieve that the same shall be decided in correct perspective. Order Date :- 8.5.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad