Doctor Rajendra Prasad Educational Society v. Ajay Kumar Yadav) and has also assailed the summoning order da

opposite party no. 2 has filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 stating that accused therein, namely Ajay Kumar Yadav (applicant) is a Chief Cashier in Dr. Rajendra Prasad Educational Society had also performed various duties like collection of fees from the students and issued receipts. It is in discharge of his duties, the applicant had received fees to the tune of Rs. 41,66,650/- and an inquiry was ordered against him by the college administration, which from, it was found that the applicant had unauthorizedly collected funds to the tune of Rs.41,66,650/-. It is further alleged that the applicant had admitted before the college administration that he has taken the said money unauthorizedly from the college funds of the personal use and also undertook the liability to return the said amount. It is in this regard a compromise deed was executed on 09.02.2024 where the applicant has admitted his liability. The applicant has paid the complainant an amount of Rs.16,21,000/- vide cheque no. 456872 dated 19.07.2024, which, on presentation for payment, was dishonoured and the reasons stated was insufficient funds. It is further alleged that despite notice given to the applicant, the payment was not made within the prescribed time and accordingly, the present complaint was filed.

4. According to the order sheet, on 22.11.2024 the trial court has duly recorded the facts as stated in the complaint and passed orders for summoning the applicant. The applicant has subsequently put in appearance and has also obtained bail.

5. The first ground urged by the applicant is that the applicant ought to have been heard before taking cognizance in light of proviso 2 to Section 223 of the Bhartiya Nagarik Suraksha Sanhita, 2023. It was submitted that after coming into force the Bhartiya Nagarik Suraksha Sanhita, 2023, at the stage of examination of the complaint, it is mandatory that the accused also be heard. It is further submitted that without hearing the accused, impugned order dated 22.11.2024 has been passed and consequently, the same deserves to be set aside. Apart from the above, it is vehemently submitted that the complainant has deliberately concealed facts with regard to certain payments made by the applicant to the complainant, which was not disclosed in the complaint and consequently, the complaint has not been filed bona-fide manner and the same deserves to be rejected.

6. Learned A.G.A. on the other has opposed the application under Section 482 Cr.P.C. and submits that from the perusal of the order sheet, it would be abundantly clear that the provisions of Section 223 of the Bhartiya Nagarik Suraksha Sanhita, 2023 has been complied with. Once the applicant has put in appearance before the trial court, it is open for him to take adequate defence and ground before the trial court itself, rather than seek to record a finding before this Court in the proceedings under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023.

7. I have heard learned counsel for parties and perused the record.

8. There is no dispute with regard to the facts stated in the complaint that a compromise was arrived at between the applicant, who was working on the post of Chief Cashier in Dr. Rajendra Prasad Educational Society. Further the applicant had also given a cheque to the complainant, which has been dishonoured but the defence raised by the applicant is that in- fact there was a loan agreement between the applicant and complainant on 15.04.2021.

9. Be that as it may, this Court noticed that proceedings under Section 138 of the Negotiable Instruments Act, 1881 are at the very inception and only the applicant has been summoned in compliance of Section 223 of the Bhartiya Nagarik Suraksha Sanhita, 2023. The applicant would have a liberty to put in appearance before the trial court and raise all the pleas in his defence, may be admissible.

10. From perusal of record, this Court does not find that the applicant has filed any document or given a reply in the trial court but the present disputed question of fact has been raised before this Court and seek a direction from this Court to direct the trial court to duly consider the aspect of loan agreement and has also that certain amounts have already been paid to the complainant.

11. In the considered opinion of this Court, the magistrate at this stage has been undoubted wide discretion in the mater which is to be judicially exercised by and once the magistrate has exercised his discretion in a judicious way it is not justified even for the High Court to substitute its own discretion for that of the Magistrate or to indulge itself into the exercise of examining the case on merits. In tis regard following observations made by the Hon'ble Supreme Court in the case of Smt. Nagawaa Vs. Veeranna Shivalingappa Konjalgi & Ors, 1976 (3) SCC 736, may be recalled:- "The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercise his discretion it is not for the High Court, or even this Court, to substitute its own discretion for. that of the Magistrate or to examine the case on merits with view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under s. 202 of the Code of Criminal Procedure which culminates into an order under s. 2042 of the Code."

12. In light of the above, this Court is of the considered view that no such finding or direction as prayed by the applicant can be granted. Even at this stage of trial no interference can be made once it is abundantly clear that the applicant has put in appearance before the trial court where will have full opportunity to place all the material and documents in accordance with law at the appropriate stage.

13. This Court is satisfied that the no orders have been passed contrary to what was urged by the applicant in violation of Section 223 (2) of the Bhartiya Nagarik Suraksha Sanhita, 2023 and accordingly this Court does not find any merits necessitating interferon in the application under Section 482 Cr.P.C.

14. For the reasons aforesaid, the application under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (482 Cr.P.C.) is bereft of merit and is accordingly, dismissed. . Order Date :- 8.4.2025 Virendra (Alok Mathur, J.) VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench

opposite party no. 2 has filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 stating that accused therein, namely Ajay Kumar Yadav (applicant) is a Chief Cashier in Dr. Rajendra Prasad Educational Society had also performed various duties like collection of fees from the students and issued receipts. It is in discharge of his duties, the applicant had received fees to the tune of Rs. 41,66,650/- and an inquiry was ordered against him by the college administration, which from, it was found that the applicant had unauthorizedly collected funds to the tune of Rs.41,66,650/-. It is further alleged that the applicant had admitted before the college administration that he has taken the said money unauthorizedly from the college funds of the personal use and also undertook the liability to return the said amount. It is in this regard a compromise deed was executed on 09.02.2024 where the applicant has admitted his liability. The applicant has paid the complainant an amount of Rs.16,21,000/- vide cheque no. 456872 dated 19.07.2024, which, on presentation for payment, was dishonoured and the reasons stated was insufficient funds. It is further alleged that despite notice given to the applicant, the payment was not made within the prescribed time and accordingly, the present complaint was filed.

4. According to the order sheet, on 22.11.2024 the trial court has duly recorded the facts as stated in the complaint and passed orders for summoning the applicant. The applicant has subsequently put in appearance and has also obtained bail.

5. The first ground urged by the applicant is that the applicant ought to have been heard before taking cognizance in light of proviso 2 to Section 223 of the Bhartiya Nagarik Suraksha Sanhita, 2023. It was submitted that after coming into force the Bhartiya Nagarik Suraksha Sanhita, 2023, at the stage of examination of the complaint, it is mandatory that the accused also be heard. It is further submitted that without hearing the accused, impugned order dated 22.11.2024 has been passed and consequently, the same deserves to be set aside. Apart from the above, it is vehemently submitted that the complainant has deliberately concealed facts with regard to certain payments made by the applicant to the complainant, which was not disclosed in the complaint and consequently, the complaint has not been filed bona-fide manner and the same deserves to be rejected.

6. Learned A.G.A. on the other has opposed the application under Section 482 Cr.P.C. and submits that from the perusal of the order sheet, it would be abundantly clear that the provisions of Section 223 of the Bhartiya Nagarik Suraksha Sanhita, 2023 has been complied with. Once the applicant has put in appearance before the trial court, it is open for him to take adequate defence and ground before the trial court itself, rather than seek to record a finding before this Court in the proceedings under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023.

7. I have heard learned counsel for parties and perused the record.

8. There is no dispute with regard to the facts stated in the complaint that a compromise was arrived at between the applicant, who was working on the post of Chief Cashier in Dr. Rajendra Prasad Educational Society. Further the applicant had also given a cheque to the complainant, which has been dishonoured but the defence raised by the applicant is that in- fact there was a loan agreement between the applicant and complainant on 15.04.2021.

9. Be that as it may, this Court noticed that proceedings under Section 138 of the Negotiable Instruments Act, 1881 are at the very inception and only the applicant has been summoned in compliance of Section 223 of the Bhartiya Nagarik Suraksha Sanhita, 2023. The applicant would have a liberty to put in appearance before the trial court and raise all the pleas in his defence, may be admissible.

10. From perusal of record, this Court does not find that the applicant has filed any document or given a reply in the trial court but the present disputed question of fact has been raised before this Court and seek a direction from this Court to direct the trial court to duly consider the aspect of loan agreement and has also that certain amounts have already been paid to the complainant.

11. In the considered opinion of this Court, the magistrate at this stage has been undoubted wide discretion in the mater which is to be judicially exercised by and once the magistrate has exercised his discretion in a judicious way it is not justified even for the High Court to substitute its own discretion for that of the Magistrate or to indulge itself into the exercise of examining the case on merits. In tis regard following observations made by the Hon'ble Supreme Court in the case of Smt. Nagawaa Vs. Veeranna Shivalingappa Konjalgi & Ors, 1976 (3) SCC 736, may be recalled:- "The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercise his discretion it is not for the High Court, or even this Court, to substitute its own discretion for. that of the Magistrate or to examine the case on merits with view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under s. 202 of the Code of Criminal Procedure which culminates into an order under s. 2042 of the Code."

12. In light of the above, this Court is of the considered view that no such finding or direction as prayed by the applicant can be granted. Even at this stage of trial no interference can be made once it is abundantly clear that the applicant has put in appearance before the trial court where will have full opportunity to place all the material and documents in accordance with law at the appropriate stage.

13. This Court is satisfied that the no orders have been passed contrary to what was urged by the applicant in violation of Section 223 (2) of the Bhartiya Nagarik Suraksha Sanhita, 2023 and accordingly this Court does not find any merits necessitating interferon in the application under Section 482 Cr.P.C.

14. For the reasons aforesaid, the application under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (482 Cr.P.C.) is bereft of merit and is accordingly, dismissed. . Order Date :- 8.4.2025 Virendra (Alok Mathur, J.) VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench