Manoj Kumar v. Hani), under section

applicant and Sri S.K. Singh, learned AGA for the State.

3. The counsel for the applicant and learned AGA have made a joint statement that they do not propose to file any further affidavits, thus, with the consent of the parties, the application is being decided at the fresh stage.

4. This application under Section 482 Cr.P.C. has been filed by the applicant to quash the summoning Order dated 24.5.2024 passed by Additional Chief Judicial Magistrate, Court No.3 Ghaziabad in Complaint Case No. 3070/2024 (Manoj Kumar Versus Hani), under section 138 Negotiable Instruments Act Police station Sihani Gate District Ghaziabad.

5. Learned counsel for the applicant submits that a complaint stood lodged against him on 01.06.2023 by the opposite party no. 2 under Section 138 of the N.I. Act with an allegation that a cheque bearing No. 048028 dated 28.03.2023 of Rs. 17 Lakhs was drawn by the applicant in favour of the opposite party no. 2 which on presentation in the Bank on 28.03.2023 was dishonoured on

29.03.2023, a statutory notice has been issued on 15.04.2023 which is stated to have been served on 18.04.2023 followed by a complaint on 01.06.2023. Thereafter the applicant has been summoned under Section 138 of the N.I. Act on 24.05.2024. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reason, firstly as per the averments contained in the complaint itself reference in para-10, a statutory notice was issued on 15.04.2023 which is stated to have been served upon the applicant on

18.04.2023 but the complaint stood preferred on 1.06.2023. He submits that the complaint itself was beyond the permissible period as specified under Section 138 read with section 142 of the N.I. Act.

6. Submission is that treating the date 18.04.2023 to be the date of service of the notice upon the applicant, 15 clear days is to be accorded for making the payment and the cause of action would arise within a period of one month from lapsing of 15 days. He thus submits that the complaint has been filed beyond the stipulated period. Secondly, he has argued that there happened to be an agreement so entered into the applicant and the opposite party no. 2, however, the cheque has been missutilized which was a security cheque for the purposes of getting it intentionally dishonoured. Reliance has been placed upon the report of the Police report also. A first information report was also lodged by the wife of the applicant under Sections 354, 354(Ka), 406, 504, 506 IPC being FIR No. 0358 of 2023 on 08.06.2023 against the opposite party no. 2 with relation to an allegation that the opposite party no. 2 had sought to illegally encroached and dispossessed the applicant. He submits that the present complaint is nothing but a counter-blast in that regard.

7. Learned AGA on the other hand submits that once a cheque stood drawn and it was dishonoured then the presumption under Section 139 of the N.I. Act would also be in favour of the holder.

8. I have heard learned counsel for the parties and gone through the records carefully.

9. As regards the submission raised by the learned counsel for the applicant that taking the date 18.04.2023 the date of service of the notice, the complaint stood filed on 01.06.2023 thus the complaint was beyond the permissible period is concerned. Suffice is to say that from the date of service of the notice, 15 days is to be accorded for making the payment and the complaint is to be filed within 30 days thereof. The Court finds that the complaint stood preferred even before the lapsing of 45 days, thus, it cannot be said that the complaint was beyond limitation.

10. Insofar as argument raised by the learned counsel for the applicant that the said cheque was tendered as a security, thus, it would not answer the description of other debts and liabilities so as to invoke the provisions of Section 138 of the N.I. Act is concerned. Suffice is to say that the Hon'ble Apex Court in the case of M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another (2022) 18 SCC 631 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."

12. In Sunil Todi and others Vs. State of Gujarat, (2022) 16 SCC 762 the Hon'ble Apex Court has reiterated the aforesaid law.

13. With respect to the argument so sought to be raised that the present complaint is a counter-blast is concerned, the same is not convincible at this stage, particularly, it may be a subject of trial but it would be noteworthy to mention here that a complaint stood preferred on 01.06.2023, whereas the FIR was lodged on

08.06.2023.

14. As regards , the reliance so placed upon the police report is concerned, the same is not liable to be considered at this stage, particularly, when the occasion to consider the same would only be at the stage, when the trial commences as the same may be at best a defence. So far as the averments contained in para 14 that no agreement to sell is executed is concerned, the same is at best a defence which can be taken at the time when the trial commences.

15. In view of the said discussion, no case is made out. Accordingly, the application stands dismissed. Order Date :- 14.5.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad

applicant and Sri S.K. Singh, learned AGA for the State.

3. The counsel for the applicant and learned AGA have made a joint statement that they do not propose to file any further affidavits, thus, with the consent of the parties, the application is being decided at the fresh stage.

4. This application under Section 482 Cr.P.C. has been filed by the applicant to quash the summoning Order dated 24.5.2024 passed by Additional Chief Judicial Magistrate, Court No.3 Ghaziabad in Complaint Case No. 3070/2024 (Manoj Kumar Versus Hani), under section 138 Negotiable Instruments Act Police station Sihani Gate District Ghaziabad.

5. Learned counsel for the applicant submits that a complaint stood lodged against him on 01.06.2023 by the opposite party no. 2 under Section 138 of the N.I. Act with an allegation that a cheque bearing No. 048028 dated 28.03.2023 of Rs. 17 Lakhs was drawn by the applicant in favour of the opposite party no. 2 which on presentation in the Bank on 28.03.2023 was dishonoured on

29.03.2023, a statutory notice has been issued on 15.04.2023 which is stated to have been served on 18.04.2023 followed by a complaint on 01.06.2023. Thereafter the applicant has been summoned under Section 138 of the N.I. Act on 24.05.2024. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reason, firstly as per the averments contained in the complaint itself reference in para-10, a statutory notice was issued on 15.04.2023 which is stated to have been served upon the applicant on

18.04.2023 but the complaint stood preferred on 1.06.2023. He submits that the complaint itself was beyond the permissible period as specified under Section 138 read with section 142 of the N.I. Act.

6. Submission is that treating the date 18.04.2023 to be the date of service of the notice upon the applicant, 15 clear days is to be accorded for making the payment and the cause of action would arise within a period of one month from lapsing of 15 days. He thus submits that the complaint has been filed beyond the stipulated period. Secondly, he has argued that there happened to be an agreement so entered into the applicant and the opposite party no. 2, however, the cheque has been missutilized which was a security cheque for the purposes of getting it intentionally dishonoured. Reliance has been placed upon the report of the Police report also. A first information report was also lodged by the wife of the applicant under Sections 354, 354(Ka), 406, 504, 506 IPC being FIR No. 0358 of 2023 on 08.06.2023 against the opposite party no. 2 with relation to an allegation that the opposite party no. 2 had sought to illegally encroached and dispossessed the applicant. He submits that the present complaint is nothing but a counter-blast in that regard.

7. Learned AGA on the other hand submits that once a cheque stood drawn and it was dishonoured then the presumption under Section 139 of the N.I. Act would also be in favour of the holder.

8. I have heard learned counsel for the parties and gone through the records carefully.

9. As regards the submission raised by the learned counsel for the applicant that taking the date 18.04.2023 the date of service of the notice, the complaint stood filed on 01.06.2023 thus the complaint was beyond the permissible period is concerned. Suffice is to say that from the date of service of the notice, 15 days is to be accorded for making the payment and the complaint is to be filed within 30 days thereof. The Court finds that the complaint stood preferred even before the lapsing of 45 days, thus, it cannot be said that the complaint was beyond limitation.

10. Insofar as argument raised by the learned counsel for the applicant that the said cheque was tendered as a security, thus, it would not answer the description of other debts and liabilities so as to invoke the provisions of Section 138 of the N.I. Act is concerned. Suffice is to say that the Hon'ble Apex Court in the case of M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another (2022) 18 SCC 631 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."

12. In Sunil Todi and others Vs. State of Gujarat, (2022) 16 SCC 762 the Hon'ble Apex Court has reiterated the aforesaid law.

13. With respect to the argument so sought to be raised that the present complaint is a counter-blast is concerned, the same is not convincible at this stage, particularly, it may be a subject of trial but it would be noteworthy to mention here that a complaint stood preferred on 01.06.2023, whereas the FIR was lodged on

08.06.2023.

14. As regards , the reliance so placed upon the police report is concerned, the same is not liable to be considered at this stage, particularly, when the occasion to consider the same would only be at the stage, when the trial commences as the same may be at best a defence. So far as the averments contained in para 14 that no agreement to sell is executed is concerned, the same is at best a defence which can be taken at the time when the trial commences.

15. In view of the said discussion, no case is made out. Accordingly, the application stands dismissed. Order Date :- 14.5.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad