Meerut, (M/s. Mimhance v. Harish Kumar) as well as order dated

1. Heard Sri Bhavya Sahai, learned counsel for the applicant as well as Sri Moti Lal, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 08.09.2021 passed by learned Judicial Magistrate, Court No.2, Meerut, (M/s. Mimhance Versus Harish Kumar) as well as order dated 30.08.2023 passed by Additional Session Judge Court No.20, Meerut, in Criminal Case No. 225 of 2021 (Harish Kumar Versus State of U.P. and another), and entire proceeding Complaint Case No. 6642 of 2020, (M/s. Mimhance Versus Harish Kumar) pending in the court of Learned Judicial Magistrate, Court No.2, Meerut, under Section 138 Negotiable Instrument Act 1881, Police Station- Medical, District Meerut.

3. The case of the applicant is that a complaint was lodged by O.P. No.2 on 21.09.2020 against the applicant under Section 138 of N.I. Act with an allegation that O.P. No.2 is a Medical College, which offers medical services in collaboration with the medical services of the police personnel in pursuance of an agreement so entered into between them. Allegation is that the brother of the applicant was seriously ill and he was admitted in the hospital on 16.04.2020 and he came to be discharged on 26.05.2020. Certain medical bills became due/payable so in discharge of a liability, it is alleged that the applicant had drawn two cheques, bearing number "464656" and "464658" of an amount of Rs.1,00,000/- and Rs.80,000/- respectively. Allegation is that the said cheque when presented in the bank came to be dishonoured on 27.05.2020 with the remark "Exceeds Arrangement" and as per the allegations in the complaint, and the assurance of the applicant, the O.P. No.2 again presented in the bank on 10.08.2020, which came to be dishonoured on 13.08.2020 with the remark "Exceeds Arrangement". Pursuant whereto on 27.08.2020, a statutory demand notice issued, which is stated to have been served on 28.07.2020 and on 21.09.2020, the complaint under Section 138 of N.I. Act came to be preferred, pursuant whereto, on 08.09.2021, the applicant came to be summoned under Section 138 of N.I. Act, thereafter, a revision also came to be filed which stood dismissed.

4. Questioning the same, the applicant has filed the present application.

5. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for a single moment, particularly in view of the fact that the entire payment has been made and he seeks to rely upon the document Annexure-1 at page- 22 of the paper-book, being a patient's detailed report, wherein a total amount due is stated to be Rs.2,00,770/-, amount paid is Rs.1,90,000/- and discount is of Rs.10,770/-. Learned counsel for the applicant submits that once the entire payment stood made, thus there is no question of any debt or liability so as to invoke the provisions of Section 138 of the N.I. Act. Further submission is that the applicant has also initiated proceedings under Section 156(3) of CrPC, which became Case No.1516 of 2020, against the Manager Dheeraj Kumar and one Sri Dhirendra Kumar Gupta, Accounts Manager. Allegation is that the said two cheques stood misutilized and offences under Sections 406 and 420 IPC are stated to have been alleged. Learned counsel for the applicant submits that in the said proceedings, which transformed into a Complaint Case No.713 of 2020 on 02.08.2021, summoning order has been issued. Submission is that two parallel proceedings cannot be allowed to be continued together and secondly, the summoning order in the proceedings under Section 156(3) CrPC which transformed into a complaint case is dated 02.08.2021, which has been initiated by the applicant and so far as the present impugned summoning order is concerned, the date of summoning order is 08.09.2021. He thus submits that the summoning order cannot be sustained and is liable to be set aside.

6. Learned A.G.A. on the other hand submits that once the cheques stood drawn and were dishonoured, then presumption under Section 139 of N.I. Act would be there.

7. I have heard the submissions so made across the Bar and perused the records carefully.

8. The sole question which arises for determination in the present proceedings, is the extent of judicial intervention. Apparently, as per the complaint under Section 138 of N.I. Act which came to be preferred by O.P. No.2 on 21.09.2020, the allegation is with respect to discharge of liability (the payment of medical bills), two cheques bearing number "464656" and "464658" dated 26.05.2020 for an amount of Rs.1,00,000/- and Rs.85,000/- came to be drawn which came to be dishonoured on two occasions, firstly, on 27.05.2020 and secondly on 10.08.2020, information whereof was made available to the O.P. No.2 on 13.08.2020, followed by a statutory demand notice on 27.08.2020, which came to be served on 28.08.2020 and the complaint on 21.09.2020 and the summoning order on 08.09.2021. A perusal of the sequence of events would show that there is no infraction of the provisions of Section 138 read with Section 142 of the N.I. Act, and it is also not the case of the applicant. The basic premise on which the argument of the learned counsel for the applicant pressed upon is that already the entire payment has been made as he seeks to rely on page-22 being patient's detailed report. The question as to whether the said payments were actually made or not and whether the said document is a genuine document is a question which can be raised during the trial when the proceedings are allowed to continue. As regards the second submission of the learned counsel for the applicant that already proceedings under Section 156(3) of the CrPC stood initiated by the applicant against the O.P. No.2 is concerned, the said proceedings stood initiated on 21.09.2020 that is the date when the complaint under Section 138 of the N.I. Act came to be preferred by O.P. No. 2. Thereafter the case stood transformed into a complaint case on 31.10.2020 and the summoning order came to be passed on 02.08.2021. The question as to whether there has been any offence under Sections 420 read with Section 406 of IPC are made out or not and further they would have any impact upon the issue when the cheques stood dishonoured prior to the lodging of the proceedings under Section 156(3) of CrPC is concerned, they are to be tested on its own strength and velocity at the time when the trial commences and not at this stage. Moreover, the presumption under Section 139 of N.I. Act is already there.

9. Accordingly, the interference is declined. Application stands disposed of, leaving it open for the applicant to take all legal and factual grounds as admissible and advisable before the court below, and this Court has no reason to disbelieve that the court below shall decide the proceeding in correct perspective. Order Date :- 8.8.2025 N.S.Rathour (Vikas Budhwar, J) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad

1. Heard Sri Bhavya Sahai, learned counsel for the applicant as well as Sri Moti Lal, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 08.09.2021 passed by learned Judicial Magistrate, Court No.2, Meerut, (M/s. Mimhance Versus Harish Kumar) as well as order dated 30.08.2023 passed by Additional Session Judge Court No.20, Meerut, in Criminal Case No. 225 of 2021 (Harish Kumar Versus State of U.P. and another), and entire proceeding Complaint Case No. 6642 of 2020, (M/s. Mimhance Versus Harish Kumar) pending in the court of Learned Judicial Magistrate, Court No.2, Meerut, under Section 138 Negotiable Instrument Act 1881, Police Station- Medical, District Meerut.

3. The case of the applicant is that a complaint was lodged by O.P. No.2 on 21.09.2020 against the applicant under Section 138 of N.I. Act with an allegation that O.P. No.2 is a Medical College, which offers medical services in collaboration with the medical services of the police personnel in pursuance of an agreement so entered into between them. Allegation is that the brother of the applicant was seriously ill and he was admitted in the hospital on 16.04.2020 and he came to be discharged on 26.05.2020. Certain medical bills became due/payable so in discharge of a liability, it is alleged that the applicant had drawn two cheques, bearing number "464656" and "464658" of an amount of Rs.1,00,000/- and Rs.80,000/- respectively. Allegation is that the said cheque when presented in the bank came to be dishonoured on 27.05.2020 with the remark "Exceeds Arrangement" and as per the allegations in the complaint, and the assurance of the applicant, the O.P. No.2 again presented in the bank on 10.08.2020, which came to be dishonoured on 13.08.2020 with the remark "Exceeds Arrangement". Pursuant whereto on 27.08.2020, a statutory demand notice issued, which is stated to have been served on 28.07.2020 and on 21.09.2020, the complaint under Section 138 of N.I. Act came to be preferred, pursuant whereto, on 08.09.2021, the applicant came to be summoned under Section 138 of N.I. Act, thereafter, a revision also came to be filed which stood dismissed.

4. Questioning the same, the applicant has filed the present application.

5. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for a single moment, particularly in view of the fact that the entire payment has been made and he seeks to rely upon the document Annexure-1 at page- 22 of the paper-book, being a patient's detailed report, wherein a total amount due is stated to be Rs.2,00,770/-, amount paid is Rs.1,90,000/- and discount is of Rs.10,770/-. Learned counsel for the applicant submits that once the entire payment stood made, thus there is no question of any debt or liability so as to invoke the provisions of Section 138 of the N.I. Act. Further submission is that the applicant has also initiated proceedings under Section 156(3) of CrPC, which became Case No.1516 of 2020, against the Manager Dheeraj Kumar and one Sri Dhirendra Kumar Gupta, Accounts Manager. Allegation is that the said two cheques stood misutilized and offences under Sections 406 and 420 IPC are stated to have been alleged. Learned counsel for the applicant submits that in the said proceedings, which transformed into a Complaint Case No.713 of 2020 on 02.08.2021, summoning order has been issued. Submission is that two parallel proceedings cannot be allowed to be continued together and secondly, the summoning order in the proceedings under Section 156(3) CrPC which transformed into a complaint case is dated 02.08.2021, which has been initiated by the applicant and so far as the present impugned summoning order is concerned, the date of summoning order is 08.09.2021. He thus submits that the summoning order cannot be sustained and is liable to be set aside.

6. Learned A.G.A. on the other hand submits that once the cheques stood drawn and were dishonoured, then presumption under Section 139 of N.I. Act would be there.

7. I have heard the submissions so made across the Bar and perused the records carefully.

8. The sole question which arises for determination in the present proceedings, is the extent of judicial intervention. Apparently, as per the complaint under Section 138 of N.I. Act which came to be preferred by O.P. No.2 on 21.09.2020, the allegation is with respect to discharge of liability (the payment of medical bills), two cheques bearing number "464656" and "464658" dated 26.05.2020 for an amount of Rs.1,00,000/- and Rs.85,000/- came to be drawn which came to be dishonoured on two occasions, firstly, on 27.05.2020 and secondly on 10.08.2020, information whereof was made available to the O.P. No.2 on 13.08.2020, followed by a statutory demand notice on 27.08.2020, which came to be served on 28.08.2020 and the complaint on 21.09.2020 and the summoning order on 08.09.2021. A perusal of the sequence of events would show that there is no infraction of the provisions of Section 138 read with Section 142 of the N.I. Act, and it is also not the case of the applicant. The basic premise on which the argument of the learned counsel for the applicant pressed upon is that already the entire payment has been made as he seeks to rely on page-22 being patient's detailed report. The question as to whether the said payments were actually made or not and whether the said document is a genuine document is a question which can be raised during the trial when the proceedings are allowed to continue. As regards the second submission of the learned counsel for the applicant that already proceedings under Section 156(3) of the CrPC stood initiated by the applicant against the O.P. No.2 is concerned, the said proceedings stood initiated on 21.09.2020 that is the date when the complaint under Section 138 of the N.I. Act came to be preferred by O.P. No. 2. Thereafter the case stood transformed into a complaint case on 31.10.2020 and the summoning order came to be passed on 02.08.2021. The question as to whether there has been any offence under Sections 420 read with Section 406 of IPC are made out or not and further they would have any impact upon the issue when the cheques stood dishonoured prior to the lodging of the proceedings under Section 156(3) of CrPC is concerned, they are to be tested on its own strength and velocity at the time when the trial commences and not at this stage. Moreover, the presumption under Section 139 of N.I. Act is already there.

9. Accordingly, the interference is declined. Application stands disposed of, leaving it open for the applicant to take all legal and factual grounds as admissible and advisable before the court below, and this Court has no reason to disbelieve that the court below shall decide the proceeding in correct perspective. Order Date :- 8.8.2025 N.S.Rathour (Vikas Budhwar, J) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad