High Court · 2025

applicant has challenged the entire proceedings initiated on the complaint of opposite party no. 2 under Section 138 of the Negotiable Instruments Act, 1881 as well as summoning order dated 10.12.2024 passed by learned Additional Chief Judicial Magistrate-II, Lakhimpur Kheri in Complaint Case No. 2748 of 2024 (M/s M.S. Trading Vs. Vishal Kumar Tiwari).

3. It has been submitted by learned counsel for applicant that the applicant was purchasing goods for his retail outlets from the complainant (opposite party no. 2). The dispute pertains to the business relationship, inasmuch as, a cheque for an amount of Rs.10,73,164/- drawn by the applicant was tendered to the complainant being cheque no. 000152 which, on due presentation to the bank, bounced with the endorsement that "payment has been stopped by the drawer". Subsequently, it is alleged that a notice was also sent by the complainant, pursuant to which, the payment of the outstanding amount was not made by the applicant leading the complainant to prefer the complaint before the trial court.

4. The trial court before proceeding in the matter after examining the complaint on 29.10.2024 had issued notices to the applicant, who is an accused in the said complaint in compliance of provisions of Section 223 of the Bhartiya Nagarik Suraksha Sanhita, 2023. In pursuance to which, the applicant has appeared before the trial court and also opposed the complaint.

5. The order sheet further indicates that the matter was fixed on

10.12.2024 on which arguments from both the parties were heard but after the order was passed by the court certain objections were raised, which has been rejected. After the arguments, an application was made for staying of the proceedings before the trial court itself, which has been rejected by order dated 10.12.2024.

6. Learned counsel for applicant has submitted that the proceedings have been initiated by the trial court in a most arbitrary manner against the applicant and therefore, deserves to be set aside. The first ground raised that the applicant has not been given proper opportunity of hearing before the trial court. In this regard it is noticed that the trial court itself has proceeded the matter in consonance with the proviso 2 to Section 223 of the Bhartiya Nagarik Suraksha Sanhita, 2023 and had issued notices to the applicant on 29.10.2024. The order itself records that on appearance the applicant has filed his objection and at the stage of taking cognizance, the trial court has duly considered the arguments and objections filed by the applicant.

7. The paragraph-wise reply was also submitted on behalf of the applicant, which was also duly considered. The trial court also taking into account the fact that the applicant has denied certain pleadings in the complaint but found that from the averments that a cheque of Rs.10,73,164/- was issued by the applicant in favour of the complainant. Even though the same may have been granted in nature of a security but still on presentation the said cheque had bounced with the endorsement that the "payment has been stopped by the drawer" and accordingly, has summoned the applicant by means of order dated 10.12.2024.

8. It has been submitted by learned counsel for applicant that once he had indicated in his reply that he does not owe any legally enforceable debt to the complainant then the trial court would have concluded the proceedings and dismissed the complaint rather than to summon the applicant.

9. No doubt that for being successful in the proceedings initiated the complainant, he will have to demonstrate that same amount was legally enforceable amount due to him and in this regard at the very outset, if any, objection has been taken by the accused then certainly the issue ought to be duly considered by the trial court on the basis of evidence and material available on record and only thereafter any finding can be recorded.

10. The very fact that no legally enforceable debt remains to be paid to the complainant is an issue which can be raised by the applicant and if so raised, would have to be considered by the trial court at the appropriate stage as it would be a valid defence to defeat the claim of the complainant. Merely because this objection has been raised cannot result in dismissal of the complaint at the very outset without going into the correctness of the said issue and giving opportunity to the complainant.

11. Accordingly, it would be open for the applicant to lead appropriate evidence in support of his defence before the trial court and the trial court would adequately will look into the same before reaching any findings. Therefore, this Court does not find any merit in the submission of the applicant that merely on taking such a stand, the complaint ought to be rejected. Apart from the above, this Court finds that the trial court has proceeded in the matter in accordance with law and only after giving an opportunity of hearing to the applicant had issued notices/summons to him.

12. There is no denial of the fact that the applicant on the other hand has appeared before the trial court and also denied the contents of complaint. Accordingly, once the applicant has already put in appearance and placed his defence before the trial court, the parallel inquiry would not be conducted by this Court in exercise of power under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (482 Cr.P.C.). It is only when there is any illegally or violation of due process of law is made by the trial court would empower this Court to interfere in exercise of powers under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (482 Cr.P.C.). Accordingly, this Court does not find any ground to interfere in application under Section 482 Cr.P.C.

13. This application being devoid of merits is accordingly, dismissed. . Order Date :- 8.4.2025 Virendra (Alok Mathur, J.) VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench

applicant has challenged the entire proceedings initiated on the complaint of opposite party no. 2 under Section 138 of the Negotiable Instruments Act, 1881 as well as summoning order dated 10.12.2024 passed by learned Additional Chief Judicial Magistrate-II, Lakhimpur Kheri in Complaint Case No. 2748 of 2024 (M/s M.S. Trading Vs. Vishal Kumar Tiwari).

3. It has been submitted by learned counsel for applicant that the applicant was purchasing goods for his retail outlets from the complainant (opposite party no. 2). The dispute pertains to the business relationship, inasmuch as, a cheque for an amount of Rs.10,73,164/- drawn by the applicant was tendered to the complainant being cheque no. 000152 which, on due presentation to the bank, bounced with the endorsement that "payment has been stopped by the drawer". Subsequently, it is alleged that a notice was also sent by the complainant, pursuant to which, the payment of the outstanding amount was not made by the applicant leading the complainant to prefer the complaint before the trial court.

4. The trial court before proceeding in the matter after examining the complaint on 29.10.2024 had issued notices to the applicant, who is an accused in the said complaint in compliance of provisions of Section 223 of the Bhartiya Nagarik Suraksha Sanhita, 2023. In pursuance to which, the applicant has appeared before the trial court and also opposed the complaint.

5. The order sheet further indicates that the matter was fixed on

10.12.2024 on which arguments from both the parties were heard but after the order was passed by the court certain objections were raised, which has been rejected. After the arguments, an application was made for staying of the proceedings before the trial court itself, which has been rejected by order dated 10.12.2024.

6. Learned counsel for applicant has submitted that the proceedings have been initiated by the trial court in a most arbitrary manner against the applicant and therefore, deserves to be set aside. The first ground raised that the applicant has not been given proper opportunity of hearing before the trial court. In this regard it is noticed that the trial court itself has proceeded the matter in consonance with the proviso 2 to Section 223 of the Bhartiya Nagarik Suraksha Sanhita, 2023 and had issued notices to the applicant on 29.10.2024. The order itself records that on appearance the applicant has filed his objection and at the stage of taking cognizance, the trial court has duly considered the arguments and objections filed by the applicant.

7. The paragraph-wise reply was also submitted on behalf of the applicant, which was also duly considered. The trial court also taking into account the fact that the applicant has denied certain pleadings in the complaint but found that from the averments that a cheque of Rs.10,73,164/- was issued by the applicant in favour of the complainant. Even though the same may have been granted in nature of a security but still on presentation the said cheque had bounced with the endorsement that the "payment has been stopped by the drawer" and accordingly, has summoned the applicant by means of order dated 10.12.2024.

8. It has been submitted by learned counsel for applicant that once he had indicated in his reply that he does not owe any legally enforceable debt to the complainant then the trial court would have concluded the proceedings and dismissed the complaint rather than to summon the applicant.

9. No doubt that for being successful in the proceedings initiated the complainant, he will have to demonstrate that same amount was legally enforceable amount due to him and in this regard at the very outset, if any, objection has been taken by the accused then certainly the issue ought to be duly considered by the trial court on the basis of evidence and material available on record and only thereafter any finding can be recorded.

10. The very fact that no legally enforceable debt remains to be paid to the complainant is an issue which can be raised by the applicant and if so raised, would have to be considered by the trial court at the appropriate stage as it would be a valid defence to defeat the claim of the complainant. Merely because this objection has been raised cannot result in dismissal of the complaint at the very outset without going into the correctness of the said issue and giving opportunity to the complainant.

11. Accordingly, it would be open for the applicant to lead appropriate evidence in support of his defence before the trial court and the trial court would adequately will look into the same before reaching any findings. Therefore, this Court does not find any merit in the submission of the applicant that merely on taking such a stand, the complaint ought to be rejected. Apart from the above, this Court finds that the trial court has proceeded in the matter in accordance with law and only after giving an opportunity of hearing to the applicant had issued notices/summons to him.

12. There is no denial of the fact that the applicant on the other hand has appeared before the trial court and also denied the contents of complaint. Accordingly, once the applicant has already put in appearance and placed his defence before the trial court, the parallel inquiry would not be conducted by this Court in exercise of power under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (482 Cr.P.C.). It is only when there is any illegally or violation of due process of law is made by the trial court would empower this Court to interfere in exercise of powers under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (482 Cr.P.C.). Accordingly, this Court does not find any ground to interfere in application under Section 482 Cr.P.C.

13. This application being devoid of merits is accordingly, dismissed. . Order Date :- 8.4.2025 Virendra (Alok Mathur, J.) VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench