Neutral Citation No. - 2025:AHC-LKO:19881 Court No. - 12 Case :- APPLICATION U/S 482 No. - 2810 of 2025 Applicant :- Seema Enterprises, Proprietor Vinod Kumar Yadav And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home And Another Counsel for Applicant :- Ravindra Kumar Yadav,Bhagwandeen Sharma,Manish Sharma Counsel for Opposite Party :- G.A. Hon'ble Alok Mathur,J. 1. Heard Ravindra Kumar Yadav, learned counsel for applicant as well as learned A.G.A. for the State. 2. By means of present application under Section 528 of B.N.S.S. 2023, the applicants have challenged the summoning order dated 10.04.2024 passed by Presiding Officer, Additional Court No. 11, Lucknow in Complaint Case No. 35258/2023 (Sri Balaji Enterprises Vs. Seema Enterprises, Proprietor Vinod Kumar Yadav). 3. It has been submitted by learned counsel for applicants that a complaint was preferred by the respondent No. 2 alleging that during conduct of business the applicants had given a cheque for an amount of Rs. 8 lakhs being Cheque No. 92546 dated 25.05.2022 which on presentation before the bank was returned back due to insufficient funds. It is stated that despite legal notice having been given to the applicants the amount was not tendered and consequently a complaint U/S 138 of N.I. Act was preferred before the competent court. 4. Learned counsel for applicants on the other hand has submitted that the said amount as was mentioned in the cheque is not payable by the applicants and in support of his submissions he has stated that a perusal of the statement of accounts of the applicants would indicate that entire money as due from the applicants has already been paid to the complainant and consequently the complaint itself was mala fide and is not maintainable. 5. Accordingly, he submits that this aspect of the matter can be seen by this Court in proceedings under Section 528 of B.N.S.S. 2023 and prayed for allowing of the present application quashing the proceedings as well as summoning order issued by the trial court. 6. Learned A.G.A. on the other hand has opposed the application. He has submitted that trial court at the stage of issuance of summons has duly considered only foundation of facts constituted an offence under Section 138 of N.I. Act and found that the applicant who is the drawer of the cheque for Rs. 8 lakhs which was presented before the bank has been dishonored and despite legal notice having been tendered to the applicants the same has not been paid and consequently all the ingredients constituted the offence under Section 138 of N.I. Act. were present and no infirmity can be found in the impugned order. 7. He further submits that the defence with regard to the legally enforceable debt due from the applicant to the complainant and this aspect which can be looked into by the trial court after the applicant has put appearance and raised objections in this regard and adduce sufficient material to indicate the aforesaid. 8. Considering the rival submissions, I find that from the perusal of the impugned order that the trial court has considered the complaint as well as statement made under Section 200 of Cr.P.C. and issued summons to the applicants. Before this Court, the only defence raised by the applicants is that there is a dispute between the applicants and the respondents and claims that no amount is in fact due to the respondents. 9. 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. Be that as it may, this question can be raised before the trial court which can be duly considered at the appropriate stage. Apart from the above, it is a question of fact as to whether there is any legally enforceable debt or amount due from the applicants to the complainant and it is only after satisfaction by the trial court appropriate orders would be passed. At the present stage, this Court finds that summoning order has been issued after considering all the relevant aspect of the matter and the basis on which the present application is filed can be determined by the trial court at the appropriate stage. 10. Subject to aforesaid observations, I do not find any merit in the case, accordingly present application U/S 528 of B.N.S.S. is dismissed. (Alok Mathur, J.) Order Date :- 9.4.2025 Ravi/ Digitally signed by :- RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, Lucknow Bench