Mohd. Sharif Siddiqui v. Qamrul Hasan) under Section

5. In accordance with the first proviso to Section 223 of the BNSS at pre- cognizance stage, a notice is stated to have been sent to the applicant to accord him opportunity to have his say. However, the same was not responded by the applicant. Thereafter on 24.12.2024, an order came to be passed by the court below in Complaint Case No. 7762 of 2022.

6. Questioning the said order, present application has been filed.

7. Learned counsel for the applicant has submitted that the order passed by the court below on 24.12.2024 is not in conformity with the statute. He submits that though the applicant was put to notice at pre-cognizance stage as per the recital contained in the order and the applicant did not respond the same, however, the operative portion of the order is contradictory itself, as on one hand, the direction no.1 summons the applicant under Section 138 of N.I. Act, whereas direction no.3 recites that since the notice has already been served upon the applicant at pre- cognizance stage, thus there is no need to again summon the applicant. Learned counsel for the applicant thus submits that both the directions cannot go together. He thus submits that summoning order be set aside and the matter be remitted back to the court below to pass a fresh order.

8. Learned A.G.A. on the other hand submits that once the cheque stood drawn by the applicant and it has been dishonoured, then the offences are made out, particularly, when presumption under Section 139 of the N.I. Act is always in favour of the holder of the cheque. However, he could not dispute the fact that there happens to be inconsistency and contradiction in the order itself. He submits that the order be set aside and matter be remitted back. 2 of 4

9. I have heard the submissions so made across the Bar and perused the record carefully.

10. For ready reference the relevant extract of the operative portion of the order dated 24.12.2024 is extracted hereinunder: - "1. अभि(cid:3)यु寂䄗 कमरू㝄┺ हसⓙᯢ कኜᯂ धारा 138 NI Act क鎔鳚 अन्त्ቇ(cid:22)त वि(cid:24)चार北屾 ह鎔鳚तु त㝄┺(cid:24) विकया जाता है।

2. प्ቔा(cid:24)㝄┺᮲⒰ वि!ⓙᯢांक 17.02.2025 कኜᯂ धारा 274 BNSS 2023 क鎔鳚 अन्त्ቇ(cid:22)त अभि(cid:3)यु寂䄗 बयाⓙᯢ !ज(cid:22) कराⓙᯢ鎔鳚 ह鎔鳚तु प鎔鳚ኲ┈ हኜᯂ(cid:24)鎔鳚।

3. क्योंविक अभि(cid:3)यु寂䄗 पर न्याया㝄┺य ्ቛारा ्ቚ鎔鳚वि)त ⓙᯢኜᯂवि*स क鴛렙 पू(cid:24)(cid:22) म詌訜 ह᮲⒰ ताम᮲⒰㝄┺ हኜᯂ चुक鴛렙 है अतⷊ㜼 अभि(cid:3)यु寂䄗 क鎔鳚 वि(cid:24)रु鳎ꖯ पुⓙᯢⷊ㜼 समⓙᯢ जार᮲⒰ करⓙᯢ鎔鳚 क鴛렙 आ(cid:24)श्यकता ⓙᯢहከᮟ है।

4. क्योंविक अपराध जमाⓙᯢत᮲⒰ है अतⷊ㜼 इस मध्य अभि(cid:3)यु寂䄗 Rs. 25,000/- का प᮲⒰.ब᮲⒰. तथा समाⓙᯢ राभिኲ┈ क鴛렙 !ኜᯂ जमाⓙᯢत鎔鳚 न्याया㝄┺य म詌訜 !ाखि8㝄┺ कर鎔鳚।

5. यह (cid:3)᮲⒰ स्पᑎ❋ विकया जाता है विक यवि! अभि(cid:3)यु寂䄗 उपरኜᯂ寂䄗 विⓙᯢयत तितभिथ पर उपቝኌस्थत ⓙᯢहከᮟ हኜᯂता है तኜᯂ उसक鎔鳚 वि(cid:24)रु鳎ꖯ जमाⓙᯢत᮲⒰ (cid:24)ारण्* BW मु(cid:24)खि㝄┺्ቇ Rs.25,000/- जार᮲⒰ विकय鎔鳚 जाय鎔鳚्ቇ鎔鳚।"

11. Apparently, with respect to dishonouring of two cheques, a statutory notice had been issued by O.P. No.2 to the applicant which is stated to have been served followed by the complaint and at a pre-cognizance stage, in terms of first proviso to Section 223 of the BNSS, the applicant was granted an opportunity of being heard before taking cognizance. This much is clear from the order. However, the fault lies in the operative portion of the order dated 24.12.2024, wherein the direction no.1 provides that the applicant is being summoned under Section 138 of the N.I. Act, however direction no.3 on the contrary holds that since at a pre- cognizance stage, the notice was served upon the applicant, thus summons are not being issued.

12. Since there is no clarity in the order dated 24.12.2024 passed by the court below, thus in the fitness of the matter and in the interest of justice, the order dated 24.12.2024 passed by the court of Additional Court, Saharanpur in Complaint Case No.7762 of 2024 (Mohd. Sharif Siddiqui 3 of 4 Vs. Qamrul Hasan), under Section 138 of N.I. Act is set aside. Matter stands remitted back to the court below to pass a fresh order strictly in accordance with law. For facilitation early disposal, the applicant shall submit a certified copy of the order before the court below by 30.05.2025. Order Date :- 17.5.2025 N.S.Rathour (Vikas Budhwar, J) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad 4 of 4

5. In accordance with the first proviso to Section 223 of the BNSS at pre- cognizance stage, a notice is stated to have been sent to the applicant to accord him opportunity to have his say. However, the same was not responded by the applicant. Thereafter on 24.12.2024, an order came to be passed by the court below in Complaint Case No. 7762 of 2022.

6. Questioning the said order, present application has been filed.

7. Learned counsel for the applicant has submitted that the order passed by the court below on 24.12.2024 is not in conformity with the statute. He submits that though the applicant was put to notice at pre-cognizance stage as per the recital contained in the order and the applicant did not respond the same, however, the operative portion of the order is contradictory itself, as on one hand, the direction no.1 summons the applicant under Section 138 of N.I. Act, whereas direction no.3 recites that since the notice has already been served upon the applicant at pre- cognizance stage, thus there is no need to again summon the applicant. Learned counsel for the applicant thus submits that both the directions cannot go together. He thus submits that summoning order be set aside and the matter be remitted back to the court below to pass a fresh order.

8. Learned A.G.A. on the other hand submits that once the cheque stood drawn by the applicant and it has been dishonoured, then the offences are made out, particularly, when presumption under Section 139 of the N.I. Act is always in favour of the holder of the cheque. However, he could not dispute the fact that there happens to be inconsistency and contradiction in the order itself. He submits that the order be set aside and matter be remitted back. 2 of 4

9. I have heard the submissions so made across the Bar and perused the record carefully.

10. For ready reference the relevant extract of the operative portion of the order dated 24.12.2024 is extracted hereinunder: - "1. अभि(cid:3)यु寂䄗 कमरू㝄┺ हसⓙᯢ कኜᯂ धारा 138 NI Act क鎔鳚 अन्त्ቇ(cid:22)त वि(cid:24)चार北屾 ह鎔鳚तु त㝄┺(cid:24) विकया जाता है।

2. प्ቔा(cid:24)㝄┺᮲⒰ वि!ⓙᯢांक 17.02.2025 कኜᯂ धारा 274 BNSS 2023 क鎔鳚 अन्त्ቇ(cid:22)त अभि(cid:3)यु寂䄗 बयाⓙᯢ !ज(cid:22) कराⓙᯢ鎔鳚 ह鎔鳚तु प鎔鳚ኲ┈ हኜᯂ(cid:24)鎔鳚।

3. क्योंविक अभि(cid:3)यु寂䄗 पर न्याया㝄┺य ्ቛारा ्ቚ鎔鳚वि)त ⓙᯢኜᯂवि*स क鴛렙 पू(cid:24)(cid:22) म詌訜 ह᮲⒰ ताम᮲⒰㝄┺ हኜᯂ चुक鴛렙 है अतⷊ㜼 अभि(cid:3)यु寂䄗 क鎔鳚 वि(cid:24)रु鳎ꖯ पुⓙᯢⷊ㜼 समⓙᯢ जार᮲⒰ करⓙᯢ鎔鳚 क鴛렙 आ(cid:24)श्यकता ⓙᯢहከᮟ है।

4. क्योंविक अपराध जमाⓙᯢत᮲⒰ है अतⷊ㜼 इस मध्य अभि(cid:3)यु寂䄗 Rs. 25,000/- का प᮲⒰.ब᮲⒰. तथा समाⓙᯢ राभिኲ┈ क鴛렙 !ኜᯂ जमाⓙᯢत鎔鳚 न्याया㝄┺य म詌訜 !ाखि8㝄┺ कर鎔鳚।

5. यह (cid:3)᮲⒰ स्पᑎ❋ विकया जाता है विक यवि! अभि(cid:3)यु寂䄗 उपरኜᯂ寂䄗 विⓙᯢयत तितभिथ पर उपቝኌस्थत ⓙᯢहከᮟ हኜᯂता है तኜᯂ उसक鎔鳚 वि(cid:24)रु鳎ꖯ जमाⓙᯢत᮲⒰ (cid:24)ारण्* BW मु(cid:24)खि㝄┺्ቇ Rs.25,000/- जार᮲⒰ विकय鎔鳚 जाय鎔鳚्ቇ鎔鳚।"

11. Apparently, with respect to dishonouring of two cheques, a statutory notice had been issued by O.P. No.2 to the applicant which is stated to have been served followed by the complaint and at a pre-cognizance stage, in terms of first proviso to Section 223 of the BNSS, the applicant was granted an opportunity of being heard before taking cognizance. This much is clear from the order. However, the fault lies in the operative portion of the order dated 24.12.2024, wherein the direction no.1 provides that the applicant is being summoned under Section 138 of the N.I. Act, however direction no.3 on the contrary holds that since at a pre- cognizance stage, the notice was served upon the applicant, thus summons are not being issued.

12. Since there is no clarity in the order dated 24.12.2024 passed by the court below, thus in the fitness of the matter and in the interest of justice, the order dated 24.12.2024 passed by the court of Additional Court, Saharanpur in Complaint Case No.7762 of 2024 (Mohd. Sharif Siddiqui 3 of 4 Vs. Qamrul Hasan), under Section 138 of N.I. Act is set aside. Matter stands remitted back to the court below to pass a fresh order strictly in accordance with law. For facilitation early disposal, the applicant shall submit a certified copy of the order before the court below by 30.05.2025. Order Date :- 17.5.2025 N.S.Rathour (Vikas Budhwar, J) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad 4 of 4