Yatendra Pal Singh v. Mohammad Tahir), Under Section

1. Heard Sri Vinod Kumar Pandey learned counsel for the applicant and Sri Vikas Sharma learned State Law Officer for the State.

2. This is an application filed under Section 528 of the B.N.S.S. for quashing the entire proceeding as well as the impugned summoning order dated 30.07.2024 passed by Presiding Officer, Atirikt Nyayalaya, Aligarh in complaint case no. 568/2023 (Yatendra Pal Singh vs. Mohammad Tahir), Under Section 138, Negotiable Instrument Act, Police Station Banna Devi, District Aligarh.

3. The case of the applicant is that a complaint stood lodged under Section 138 of the N.I. Act against the applicant on 6.6.2023 by the opposite party no.2 with an allegation that with respect to advanced so given to the applicant by the opposite party no.2 in October, 2023 for discharge of the liability the applicant herein had drawn a cheque bearing no.262411 of Rs.5,00,000/- which on presentation in the bank on 25.4.2023 came to be dishonoured on 28.4.2023 followed by a statutory demand notice dated 12.5.2023 and the complaint on 6.6.2023 and the applicant came to be summoned on 30.7.2024.

4. Learned counsel for the applicant submits that the summoning order cannot be sustained for a simple reason that not only in the complaint but the statement under Section 200 Cr.P.C. reference has been made to the fact that an amount of Rs.5,00,000/- was advanced to the applicant by the opposite party no.2 in the month of October, 2023 thus it is not possible at all that the applicant would issue a cheque drawn on 25.4.2023 which is a date anterior to the same.

5. Submission is to the extent that the applicant had taken an amount of Rs.45,000/- as advanced on 1.5.2021 from the opposite party no.2 and given a blank cheque bearing no.262411 and had also paid an amount of Rs.1,20,000/- which is much more than the actual amount of Rs.45,000/- but the said cheque, which was as a security, has been encashed.

6. Learned counsel for the applicant has invited the attention of the Court towards page 40 of the paper book being the details of the payment so made by him. He thus submits that there is no legal debt or liability so as to invoke the provisions under Section 138 of the N.I. Act.

7. Learned State Law Officer on the other hand submits that whatever might be once the cheques stood drawn and it has been dishonoured then the presumption under Section 139 of the N.I. Act would be there and merely because there is a recital in the complaint and the statement under Section 200 Cr.P.C. that the amount of Rs.5,00,000/- was advanced in the month of October, 2023 the same would not dilute the rigours of the dishonour of a cheque under Section 138 of the N.I. Act and further whatever arguments are being raised they are the matter of defences.

8. I have heard the submissions so made across the bar and perused the record carefully. Apparently, with respect to dishonour of a cheque bearing no.262411 dated 25.4.2023 of Rs.5,00,000/- on 28.4.2023 followed by a statutory demand notice dated 12.5.2023 and the complaint on 6.6.2023 and the applicant came to be summoned on 30.7.2024. The objection of the learned counsel for the applicant is that once it has come on record as apparent from the complaint and the statements under Section 200 Cr.P.C. that the amount of Rs.5,00,000/- was extended as an advanced by the opposite party no.2 to the applicant in the month of October, 2023, thus, cheque could not have been issued a date anterior to the advancing of the cheque is concerned the same at best is a matter of defence and the summoning order cannot said to be suffering from any infirmity particularly when the applicant has not disputed the issuance of the cheque. Further more the question whether the said cheque was a security cheque or not which has been misutilized despite the payment being made to the tune of Rs.1.20,000/- against Rs.45,000/- is concerned, the same is subject matter of trial.

9. Reliance has been placed upon 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."

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

11. Moreover the presumption under Section 139 of the N.I. Act is always there.

12. Accordingly, interference is declined, application stands disposed of leaving it open to the applicant to raise all legal and factual issues as well as issue with respect to the fact that the cheque being a security cheque does not answer the description of a dishonour of the cheque in the trial and the Court has no reasons to disbelieve that the same shall be considered in accordance with law. Order Date :- 23.8.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad

1. Heard Sri Vinod Kumar Pandey learned counsel for the applicant and Sri Vikas Sharma learned State Law Officer for the State.

2. This is an application filed under Section 528 of the B.N.S.S. for quashing the entire proceeding as well as the impugned summoning order dated 30.07.2024 passed by Presiding Officer, Atirikt Nyayalaya, Aligarh in complaint case no. 568/2023 (Yatendra Pal Singh vs. Mohammad Tahir), Under Section 138, Negotiable Instrument Act, Police Station Banna Devi, District Aligarh.

3. The case of the applicant is that a complaint stood lodged under Section 138 of the N.I. Act against the applicant on 6.6.2023 by the opposite party no.2 with an allegation that with respect to advanced so given to the applicant by the opposite party no.2 in October, 2023 for discharge of the liability the applicant herein had drawn a cheque bearing no.262411 of Rs.5,00,000/- which on presentation in the bank on 25.4.2023 came to be dishonoured on 28.4.2023 followed by a statutory demand notice dated 12.5.2023 and the complaint on 6.6.2023 and the applicant came to be summoned on 30.7.2024.

4. Learned counsel for the applicant submits that the summoning order cannot be sustained for a simple reason that not only in the complaint but the statement under Section 200 Cr.P.C. reference has been made to the fact that an amount of Rs.5,00,000/- was advanced to the applicant by the opposite party no.2 in the month of October, 2023 thus it is not possible at all that the applicant would issue a cheque drawn on 25.4.2023 which is a date anterior to the same.

5. Submission is to the extent that the applicant had taken an amount of Rs.45,000/- as advanced on 1.5.2021 from the opposite party no.2 and given a blank cheque bearing no.262411 and had also paid an amount of Rs.1,20,000/- which is much more than the actual amount of Rs.45,000/- but the said cheque, which was as a security, has been encashed.

6. Learned counsel for the applicant has invited the attention of the Court towards page 40 of the paper book being the details of the payment so made by him. He thus submits that there is no legal debt or liability so as to invoke the provisions under Section 138 of the N.I. Act.

7. Learned State Law Officer on the other hand submits that whatever might be once the cheques stood drawn and it has been dishonoured then the presumption under Section 139 of the N.I. Act would be there and merely because there is a recital in the complaint and the statement under Section 200 Cr.P.C. that the amount of Rs.5,00,000/- was advanced in the month of October, 2023 the same would not dilute the rigours of the dishonour of a cheque under Section 138 of the N.I. Act and further whatever arguments are being raised they are the matter of defences.

8. I have heard the submissions so made across the bar and perused the record carefully. Apparently, with respect to dishonour of a cheque bearing no.262411 dated 25.4.2023 of Rs.5,00,000/- on 28.4.2023 followed by a statutory demand notice dated 12.5.2023 and the complaint on 6.6.2023 and the applicant came to be summoned on 30.7.2024. The objection of the learned counsel for the applicant is that once it has come on record as apparent from the complaint and the statements under Section 200 Cr.P.C. that the amount of Rs.5,00,000/- was extended as an advanced by the opposite party no.2 to the applicant in the month of October, 2023, thus, cheque could not have been issued a date anterior to the advancing of the cheque is concerned the same at best is a matter of defence and the summoning order cannot said to be suffering from any infirmity particularly when the applicant has not disputed the issuance of the cheque. Further more the question whether the said cheque was a security cheque or not which has been misutilized despite the payment being made to the tune of Rs.1.20,000/- against Rs.45,000/- is concerned, the same is subject matter of trial.

9. Reliance has been placed upon 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."

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

11. Moreover the presumption under Section 139 of the N.I. Act is always there.

12. Accordingly, interference is declined, application stands disposed of leaving it open to the applicant to raise all legal and factual issues as well as issue with respect to the fact that the cheque being a security cheque does not answer the description of a dishonour of the cheque in the trial and the Court has no reasons to disbelieve that the same shall be considered in accordance with law. Order Date :- 23.8.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad