Gaya Prasad v. Rakesh Kumar) Under Section

3. Learned counsel for the applicant submits that a complaint was lodged by the opposite party no. 2 on 19.02.2021 against the applicant under Section 138 of the N.I. Act with an allegation that with respect to discharge of a liability, a cheque of Rs. 10,00,000/- bearing no. 000006 dated 10.10.2020 was drawn which was presented in the bank on 02.01.2021 and the same stood dishonoured on 08.01.2021 on the ground of payment stopped by the drawer, followed by a statutory demand notice issued on

01.02.2021, which was alleged to have been received on

03.02.2021 and the complaint dated 19.02.2021, on 22.09.2022 summoning order has been passed.

4. Learned counsel for the applicant submitted that there is no enforceable debt or liability so as to attract the provisions of Section 138 of the N.I. Act, for the simple reason that with regard to a property, total amount being Rs. 13 lakhs, the applicant had already paid the amount of Rs. 10 lakhs and when the applicant insisted about the return of the cheque which was kept as a security then the said cheques instead of being returned was submitted in the bank and for encashment and the same was dishonoured. Learned counsel for the applicant submits that there happens to be an agreement also and for the purposes of showing the fact that the signatures and the cheque number stands endorsed therein the same was bearing the signatures of the parties, the same was sent for hand writing expert for verification and the report was also available on record. According to him, no offence is made out and rather the applicant has been cheated and misappropriation of the due amount has been done.

5. Learned State Law Officer on the other hand submits that whatever might be once the cheques stood drawn and the same stood dishonour then the presumption would be in view of Section 139 of the N.I. Act would be in favour of the holder. According to him, the arguments which the applicant seeks to raise centres around matter of defences, consideration whereof is not required at this stage in the present proceedings.

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

7. Apparently, a complaint stood lodged with regard to dishonour of a cheque of Rs. 10 lakhs. The cause of dishonour was payment stopped. The question as to whether, what was the reason for stopping the payment is a question of trial which need not be gone at this stage in the present proceedings, particularly, when summoning order is subject matter of challenge. As regards, the compliance of the provisions under Sections 138 and 142 of the N.I. Act is concerned, nothing has been brought on record by the learned counsel for the applicant that there has been in any infraction of the same.

8. Nonetheless the theory so sought to be propounded by the learned counsel for the applicant that the cheque was as a security and the payment was already made and the cheque was liable to be returned, which instead of being returned, was encashed is concerned, the same is a matter of defence. The question, whether a question of security can be gone at the stage of summoning, was subject matter of adjudication 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."

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

10. Apart from the same, what would be relevant, would be the presumption under Section 139 of the N.I. Act.

11. Accordingly, the Court finds that there is no jurisdictional error committed by the court below and moreover, the summoning order has been passed on 22.09.2022 but the present application has been presented on 27.06.2025 without any plausible explanation for delay.

12. In view of the said discussion, no case is made out. Accordingly, the application stands disposed of.

13. At this stage, learned counsel for the applicant submits that non-bailable warrants have been issued, liberty is to be accorded to the applicant to file a recall application.

14. In the opinion of the Court, once a recall application is preferred then the same shall be considered with most expeditions strictly as per the law of the land without any delay. Order Date :- 3.7.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad

3. Learned counsel for the applicant submits that a complaint was lodged by the opposite party no. 2 on 19.02.2021 against the applicant under Section 138 of the N.I. Act with an allegation that with respect to discharge of a liability, a cheque of Rs. 10,00,000/- bearing no. 000006 dated 10.10.2020 was drawn which was presented in the bank on 02.01.2021 and the same stood dishonoured on 08.01.2021 on the ground of payment stopped by the drawer, followed by a statutory demand notice issued on

01.02.2021, which was alleged to have been received on

03.02.2021 and the complaint dated 19.02.2021, on 22.09.2022 summoning order has been passed.

4. Learned counsel for the applicant submitted that there is no enforceable debt or liability so as to attract the provisions of Section 138 of the N.I. Act, for the simple reason that with regard to a property, total amount being Rs. 13 lakhs, the applicant had already paid the amount of Rs. 10 lakhs and when the applicant insisted about the return of the cheque which was kept as a security then the said cheques instead of being returned was submitted in the bank and for encashment and the same was dishonoured. Learned counsel for the applicant submits that there happens to be an agreement also and for the purposes of showing the fact that the signatures and the cheque number stands endorsed therein the same was bearing the signatures of the parties, the same was sent for hand writing expert for verification and the report was also available on record. According to him, no offence is made out and rather the applicant has been cheated and misappropriation of the due amount has been done.

5. Learned State Law Officer on the other hand submits that whatever might be once the cheques stood drawn and the same stood dishonour then the presumption would be in view of Section 139 of the N.I. Act would be in favour of the holder. According to him, the arguments which the applicant seeks to raise centres around matter of defences, consideration whereof is not required at this stage in the present proceedings.

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

7. Apparently, a complaint stood lodged with regard to dishonour of a cheque of Rs. 10 lakhs. The cause of dishonour was payment stopped. The question as to whether, what was the reason for stopping the payment is a question of trial which need not be gone at this stage in the present proceedings, particularly, when summoning order is subject matter of challenge. As regards, the compliance of the provisions under Sections 138 and 142 of the N.I. Act is concerned, nothing has been brought on record by the learned counsel for the applicant that there has been in any infraction of the same.

8. Nonetheless the theory so sought to be propounded by the learned counsel for the applicant that the cheque was as a security and the payment was already made and the cheque was liable to be returned, which instead of being returned, was encashed is concerned, the same is a matter of defence. The question, whether a question of security can be gone at the stage of summoning, was subject matter of adjudication 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."

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

10. Apart from the same, what would be relevant, would be the presumption under Section 139 of the N.I. Act.

11. Accordingly, the Court finds that there is no jurisdictional error committed by the court below and moreover, the summoning order has been passed on 22.09.2022 but the present application has been presented on 27.06.2025 without any plausible explanation for delay.

12. In view of the said discussion, no case is made out. Accordingly, the application stands disposed of.

13. At this stage, learned counsel for the applicant submits that non-bailable warrants have been issued, liberty is to be accorded to the applicant to file a recall application.

14. In the opinion of the Court, once a recall application is preferred then the same shall be considered with most expeditions strictly as per the law of the land without any delay. Order Date :- 3.7.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad