High Court · 2025

1. Heard Shri Ankit Kumar Singh, learned counsel for the applicant as well as Shri S. K. Singh, learned AGA for the State.

2. This is an application under Section 528 of the BNSS for quashing of the entire proceedings of Complaint Case No. 442 of 2024 (Smt. Dolly v. Prempal Singh Chandel) under Section 138 of the N.I. Act, Police Station-Civil Line, District-Aligarh as well as the summoning order dated 24.10.2024 passed by the Presiding Officer, Additional Court, Aligarh.

3. The case of the applicant is that a complaint was lodged by the opposite party No. 2 against the applicant, who happens to be father-in-law, with an allegation that proceedings under Section 13B of Hindu Marriage Act, had been initiated by the son of the applicant, Nikhil Singh Chandel, before the Court of Principal Judge, Family Court, Aligarh, being Case No. 1057 of 2023 for dissolution of marriage.

4. It is also alleged that a cheque bearing No. 149520 is stated to have been issued by the applicant in favour of the opposite party No. 2, dated 31.01.2024 for Rs. 4 lakhs which on presentation of the bank was dishonored on 03.04.2024 with the remark 'payment stopped'. Thereafter, the statutory demand notice was issued on 10.04.2024 and complaint was lodged on 17.05.2024. The same laid to the order dated 24.10.2024 summoning the applicant under Section 138 of the N.I. Act.

5. Questioning the summoning order, the applicant has filed the present application.

6. Learned counsel for the applicant has submitted that the cheque for amount of Rs. 4 lakhs, which is stated to have been dishonored, was a security cheque which was given as a security and thus, it does not answer the description of any offence under Section 138 of the N.I. Act. Further submission is that once the proceedings under Section 13B stood preferred, then the payment was to be paid post decision in the said proceedings. But the said cheque was presented for encashment prematurely without the proceedings being a logical end. Thus, it is submitted that the summoning order as well as the entire proceedings be quashed.

7. Learned AGA, on the other hand, submits that once a cheque stood issued, stood drawn and in the event of dishonor, the presumption would be in favour of the holder of the cheque under Section 139 of the N.I. Act. He further submits that the question as to whether the said cheque is a cheque of security, is a matter of trial which cannot be gone into at this stage when summoning order is being challenged.

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

9. Apparently, the applicant herein, who happens to be the father- in-law of the opposite party No. 2 had drawn the cheque of Rs. 4 lakhs, dated 31.01.2024, which is stated to have been dishonored on 03.04.2024. A statutory demand notice has been issued on 10.04.2024 followed a complaint on 17.05.2024.

10. As regards, the submission of learned counsel for the applicant is that the said cheque was meant for security and the same stood recited, should mention in the reply to the recall notice to the statutory demand notice dated 31.01.2024 is concerned, suffice it to say that the complaint was filed on 17.05.2024 whereas the reply to the statutory notice is dated 18.05.2024 just one day after the filling of the complaint. Moreover, Annexure 4 of page 25, which is alleged to be a reply to the statutory demand notice, dated 18.05.2024 does not inspire confidence of the Court, particularly when there was no postal endorsement and tracking report in that regard. Nonetheless, the issue as to whether the Court at the stage of summoning, is to examine the fact whether the cheque was for security or not, has been a subject matter in imputation as defined in number of decisions. 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."

11. The said law has been reiterated in the judgment of the Apex Court in Sunil Todi and others Vs. State of Gujarat, (2022) 16 SCC 762 the Hon'ble Apex Court.

12. Moreover, what is relevant at this stage is the drawing of the cheque and dishonoring of the same and once the said event stands completed then the presumption under Section 139 of the N.I. Act were in favour of the holder of the cheque.

13. Interestingly, it is not disputed by learned counsel for the applicant that the cheque was drawn by him. However, the objection is that the said cheque could only be encashed when the parties were divorced. The said submission cannot be accepted on the face of the allegations made in the complaint.

14. Accordingly, no good ground is made to interfere.

15. The application is rejected. Order Date :- 19.5.2025 Aditya Tripathi ADITYA TRIPATHI High Court of Judicature at Allahabad

1. Heard Shri Ankit Kumar Singh, learned counsel for the applicant as well as Shri S. K. Singh, learned AGA for the State.

2. This is an application under Section 528 of the BNSS for quashing of the entire proceedings of Complaint Case No. 442 of 2024 (Smt. Dolly v. Prempal Singh Chandel) under Section 138 of the N.I. Act, Police Station-Civil Line, District-Aligarh as well as the summoning order dated 24.10.2024 passed by the Presiding Officer, Additional Court, Aligarh.

3. The case of the applicant is that a complaint was lodged by the opposite party No. 2 against the applicant, who happens to be father-in-law, with an allegation that proceedings under Section 13B of Hindu Marriage Act, had been initiated by the son of the applicant, Nikhil Singh Chandel, before the Court of Principal Judge, Family Court, Aligarh, being Case No. 1057 of 2023 for dissolution of marriage.

4. It is also alleged that a cheque bearing No. 149520 is stated to have been issued by the applicant in favour of the opposite party No. 2, dated 31.01.2024 for Rs. 4 lakhs which on presentation of the bank was dishonored on 03.04.2024 with the remark 'payment stopped'. Thereafter, the statutory demand notice was issued on 10.04.2024 and complaint was lodged on 17.05.2024. The same laid to the order dated 24.10.2024 summoning the applicant under Section 138 of the N.I. Act.

5. Questioning the summoning order, the applicant has filed the present application.

6. Learned counsel for the applicant has submitted that the cheque for amount of Rs. 4 lakhs, which is stated to have been dishonored, was a security cheque which was given as a security and thus, it does not answer the description of any offence under Section 138 of the N.I. Act. Further submission is that once the proceedings under Section 13B stood preferred, then the payment was to be paid post decision in the said proceedings. But the said cheque was presented for encashment prematurely without the proceedings being a logical end. Thus, it is submitted that the summoning order as well as the entire proceedings be quashed.

7. Learned AGA, on the other hand, submits that once a cheque stood issued, stood drawn and in the event of dishonor, the presumption would be in favour of the holder of the cheque under Section 139 of the N.I. Act. He further submits that the question as to whether the said cheque is a cheque of security, is a matter of trial which cannot be gone into at this stage when summoning order is being challenged.

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

9. Apparently, the applicant herein, who happens to be the father- in-law of the opposite party No. 2 had drawn the cheque of Rs. 4 lakhs, dated 31.01.2024, which is stated to have been dishonored on 03.04.2024. A statutory demand notice has been issued on 10.04.2024 followed a complaint on 17.05.2024.

10. As regards, the submission of learned counsel for the applicant is that the said cheque was meant for security and the same stood recited, should mention in the reply to the recall notice to the statutory demand notice dated 31.01.2024 is concerned, suffice it to say that the complaint was filed on 17.05.2024 whereas the reply to the statutory notice is dated 18.05.2024 just one day after the filling of the complaint. Moreover, Annexure 4 of page 25, which is alleged to be a reply to the statutory demand notice, dated 18.05.2024 does not inspire confidence of the Court, particularly when there was no postal endorsement and tracking report in that regard. Nonetheless, the issue as to whether the Court at the stage of summoning, is to examine the fact whether the cheque was for security or not, has been a subject matter in imputation as defined in number of decisions. 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."

11. The said law has been reiterated in the judgment of the Apex Court in Sunil Todi and others Vs. State of Gujarat, (2022) 16 SCC 762 the Hon'ble Apex Court.

12. Moreover, what is relevant at this stage is the drawing of the cheque and dishonoring of the same and once the said event stands completed then the presumption under Section 139 of the N.I. Act were in favour of the holder of the cheque.

13. Interestingly, it is not disputed by learned counsel for the applicant that the cheque was drawn by him. However, the objection is that the said cheque could only be encashed when the parties were divorced. The said submission cannot be accepted on the face of the allegations made in the complaint.

14. Accordingly, no good ground is made to interfere.

15. The application is rejected. Order Date :- 19.5.2025 Aditya Tripathi ADITYA TRIPATHI High Court of Judicature at Allahabad