Neutral Citation No. - 2025:AHC-LKO:16905 Court No. - 12 Case :- APPLICATION U/S 482 No. - 2545 of 2025 Applicant :- Vishal Rai Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home, Affairs Lko. And Another Counsel for Applicant :- Abhishek Khare,Navneet Yadav Counsel for Opposite Party :- G.A. Hon'ble Alok Mathur,J. 1. Heard Sri Abhishek Khare, learned counsel for applicant as well as learned A.G.A. for the State. 2. Present application under Section 528 BNSS/482 Cr.P.C. has been filed assailing the order dated 16.11.2023 passed by Additional Judge, Lucknow issuing summons to the applicant. 3. The facts in brief as stated by learned counsel for applicant are that respondent No. 2 had filed a complaint case bearing No. 59147/2023 (Priyanka Prjapati Vs. Vishal Rai) at police station - Gomti Nagar, Lucknow under Section 138 of Negotiable Instruments Act, 1881 alleging that she had applied for a flat in Saryu Apartment of Lucknow Development Authority under the first come first serve basis, but the flat was allotted to someone-else. 4. It has been stated that a demand draft hearing No. 237855 drawn on 27.05.2022 for an amount of Rs. 5 lakhs was handed over to the revisionist to be deposited in the name of Secretary, Lucknow Development Authority for allotment of the flat to the complainant but the allegation is that revisionist had misappropriated said money and when the complainant has demanded the refund of the said amount, she was given another cheque of the same value bearing No. 08874 dated 27.03.2023 which on presentation to the bank has been dishonored and consequently proceedings under Section 138 of NI Act has been drawn against the applicant. 5. Learned counsel for applicant has submitted that the trial court has erred in issuing the summons and taking cognizance of the complaint made by the complainant on account of the fact that there was no legally enforceable contract and without recording any finding in this regard, issue of the summon is arbitrary and illegal. He further submits that cheque of Rs. 5 lakhs was given to the complainant as a security money and this aspect of the matter should have been taken care of at the stage of issuing of summons and consequently assailed the said order. 6. Learned A.G.A. on the other hand has opposed the writ petition. He has submitted that from a perusal of the notice as well as complaint, it transpires that applicant is an agent dealing allotment of flat who had obtained a draft of Rs. 5 lakhs with a promise of delivering a flat of Lucknow Development Authority but it seems that the said draft was deposited in an account of third party, namely Nishad Mohan Krishna, and not against the name of the applicant and accordingly there are serious allegations of defalcation of the draft deposited with the Lucknow Development Authority by the applicant. 7. It has further been noticed that during statement under Section 200 Cr.P.C. recorded before the trial court which have been duly considered while passing the impugned order dated 16.11.2023, all the ingredients of Section 138 NI Act were fulfilled and the trial court has duly noticed that the cheque given by the applicant has dishonored and despite expiry of the notice period, the said amount was not paid and consequently summons have been issued. 8. In the considered opinion of this Corut, 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." 9. In the aforesaid circumstances, the grounds taken by the applicant are merely as a defence which would be looked into by the trial court at the adequate stage. At the stage of issuing summons only the ingredients constituting the said offfence has to be looked into which should clearly transpire on the complaint as well as statement under Section 200 and 202 Cr.P.C. 10. Accordingly, this Court does not find any infirmity in the impugned order dated 16.11.2023. The application under Section 482 Cr.P.C. devoid of merits and the same is hereby dismissed. (Alok Mathur, J.) Order Date :- 25.3.2025 Ravi/ Digitally signed by :- RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, Lucknow Bench