Neutral Citation No. - 2025:AHC:56054 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 40649 of 2024 Applicant :- Shafique Ahmad Opposite Party :- Nasim Ahmad And 3 Others Counsel for Applicant :- Araf Khan,Lihazur Rahman Khan Counsel for Opposite Party :- G.A.,Vijay Kumar Dwivedi Hon'ble Vikas Budhwar,J. 1. Heard Sri L.R. Khan, learned counsel for the applicant as well as Sri V.S. Kushwaha, learned AGA for the State and Sri Vijay Kumar Dwivedi, learned counsel for opposite party no.2 to 3. 2. A joint statement has been made by learned counsel for the parties that they do not propose to file any response when the application be decided on the basis of documents available on record. 3. With the consent of the parties, the present application is decided at the fresh stage. 4. This is an application U/s 528 BNSS filed for quashing the summoning order dated 18.10.2024 passed by learned Civil Judge (J.D.)/ Judicial Magistrate Baheri, Bareilly in complaint case no. 163 of 2024 under Section 138 of N.I. Act P.S. Baheri District Bareilly. 5. Learned counsel for the applicant has submitted that a complaint stood lodged by the opposite party no.2 against the applicant purported to be under section 138 of N.I. Act relatable to an allegation that two cheques stood drawn by the applicant which was dishonoured. Learned counsel for the applicant submits that a statutory demand notice was sent on 04.07.2024 which was served upon the applicant on 12.07.2024, however the court below as per section 223 of BNSS was under obligation to give an opportunity to give an accused of being heard before taking cognizance of the offence as per first proviso to section 223 of BNSS but as per the recital contained in the order dated 18.10.2024 taking cognizance, this much has only been stated that notice was issued on 23.09.2024. Learned counsel for the applicant submits that it is obligatory upon the court below to record its satisfaction regarding service of notice and merely because notice has been issued would not suffice as what is to be recorded is the fact that the notice has been served. He seeks to rely upon the judgment passed in the case of Prateek Agarwal vs. State of U.P. filed U/s 482 Cr.P.C. No. 10390 of 2024 filed on 26.11.2024. According to him the order be set aside and the matter be remitted back to pass fresh order. 6. Sri V.K. Dwivedi, learned counsel for opposite party nos.2 to 3 submits that there happens to be an order, recital contained on 18.10.2024 page-20 of the paper book that the notice was served upon the applicant and thus, according to him merely because it is not been transcribed in the summoning order would not be much relevance. According to him what is to be seen is a fact that there has been compliance of Section 223 of BNSS and there happens to be compliance as even otherwise from the order sheet it is apparent that the notice would be served upon the applicant. He however, submits that in order to avoid any technicality in the matter, the order dated 18.10.2024 summoning the applicant be set as side as the matter be sent remitted back to pass a fresh order within the time bound period as stipulated by this Court. 7. Learned AGA on the other hand supports the arguments made by the counsel for opposite party nos. 1 to 3. 8. I have heard the submissions so made across the bar and perused the record carefully. 9. Apparently, the summoning order dated 18.10.2024 recites this much as the notice required under the first proviso under Section 223 of the BNSS was issued on 23.09.2024. However there is no recital of the fact that there has been satisfaction accorded regarding service of the same. Though the counsel for the opposite party nos. 1 to 3 seeks to rely upon the order sheet dated 18.10.2024 so as to contend that the service upon the applicant is sufficient but the court finds that there is no recital in the summoning order dated 18.10.2024. As already suggested by learned counsel appearing for opposite party nos. 1 to 3, the order be set aside and the matter be remitted back, this Court looking into the facts, situation is settling and the order dated 18.10.2024 while remitting the matter back to the court below to pass a fresh order while according the satisfaction regarding the service of notice upon the applicant as required under first proviso of Section 223 of BNSS within a period of a month. 10. Since the applicant as well as the opposite party no.2 are represented through their counsels, thus it shall be open for the parties to place the order before the court below for expeditious disposal of the matter. With the said observation, the application is disposed of. Order Date :- 16.4.2025 C. MANI (Vikas Budhwar,J.) Digitally signed by :- CHANDRAMANI VERMA High Court of Judicature at Allahabad