Neutral Citation No. - 2025:AHC-LKO:18664 Court No. - 12 Case :- APPLICATION U/S 482 No. - 2829 of 2025 Applicant :- Rajesh Kumar Tiwari Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Applicant :- Harish Chandra Yadav,Lalit Kumar Saxena Counsel for Opposite Party :- G.A. Hon'ble Alok Mathur,J. 1. Heard learned counsel for applicant, learned A.G.A. for the State and perused the material available on record. 2. By means of the present application under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (482 Cr.P.C.), the applicant has challenged the summoning order dated 04.06.2024 passed by learned Additional Civil Judge (Junior Division), Room No. 11/Judicial Magistrate, Gonda in Case No. 12986 of 2024, as well as order dated 03.02.2025 passed by learned Additional Sessions/F.T.C. New, Gonda in proceedings under Section 138 of the Negotiable Instruments Act, 1881, Police Station Chhapia, District Gonda pending in the court of Judicial Magistrate, Gonda. 3. The facts in brief as stated by the applicant is that the applicant had taken a shop on rent in the year 2005 from the opposite party no. 2 and in the year 2001, the complainant/opposite party no. 2 had required the applicant to deposit a security of Rs.3,00,000/-. When the applicant had shown his inability, a demand was made for signed cheque as guarantee and thereafter the applicant had given four cheques bearing No. 274491, 274493, 274494, 274480 in January 2001 to opposite party no. 2. The said cheques were presented by opposite party no. 2 and on the presentation, the same were dishonoured due to insufficient funds and despite legal notice being given to the applicant, the said amount was not tendered resulting in the complaint being filed by opposite party no. 2. On receipt of the summons, the applicant had filed a revision before the learned Additional Sessions Judge/ F.T.C., Gonda being Criminal Revision No. 431 of 2024. In the said revision, a case was setup by the applicant that the cheques allegedly given to the complainant were in-fact lost and the information was given to the police as well as Bank. Accordingly, no liability can be fixed upon the applicant in this regard. 4. The revisional court had duly considered the summoning order and found that all the necessary ingredients for invocation of Section 138 oft he Negotiable Instruments Act, 1881 were fulfilled, inasmuch as the cheque was drawn by the applicant in favour of the complainant and same had been dishonoured on presentation and despite notice, the same was not repaid. The revisional court was of the view that no illegality or infirmity has been found in the order of the trial court while issuing summons and after due application of mind, the same was passed. It was further observed that the defence, if any, can be taken by the applicant during trial, which is liable to be considered at the appropriate stage but at the stage of issuing the summons, the case of the accused is not liable to be considered. 5. Before this Court also, the same grounds were raised. Considering the facts and circumstances of the case, this Court finds that at the stage of issuing summons, the trial court has to be looked into the material available on record as existed in the form of complaint and material available under Section 200 Cr.P.C. and 202 Cr.P.C. 6. In the considered opinion of this Court, the Magistrate at this stage has been given undoubted wide discretion in the matter 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 this regard following observations have been made by Hon'ble Supreme Court in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and others, reported in (1976) 3 Supreme Court Cases 736 which is as under:- "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. 204 of the Code." 7. In the present case, on the basis of the dishonoured of the cheques issued by the applicant, proceedings were initiated by the complainant and this Court does not find any infirmity either in the summoning order or order of the revisional court. No other grounds were raised by the learned counsel for applicant. 8. In light of the above, this application under Section 482 Cr.P.C. being devoid of merits, is accordingly, dismissed. . (Alok Mathur, J.) Order Date :- 3.4.2025/Virendra Digitally signed by :- VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench