Neutral Citation No. - 2025:AHC:17915 Court No. - 77 Case :- APPLICATION U/S 528 BNSS No. - 35341 of 2024 Applicant :- Ganesh Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Manu Raj Singh,Nidhi Singh,Prateek Kumar Counsel for Opposite Party :- G.A. Hon'ble Arun Kumar Singh Deshwal,J. 1. Heard Sri Prateek Kumar, learned counsel for the applicant, Sri Ramesh Kumar, learned A.G.A for the State and perused the record. 2. The instant application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 21.11.2018 passed by Additional Metropolitan Magistrate, Court No.8, Kanpur Nagar in Complaint Case No.3530 of 2018, under Section 138 N.I. Act, Police Station- Nawabganj, District Kanpur Nagar pending in the court of Judicial Magistrate, Court No.2, Kanpur Nagar. 3. Contention of learned counsel for the applicant is that the cheque in question is missing cheque, which has been misused by the opposite party no.2. Intimation regarding missing of cheque was given to the police on 24.07.2018 and the same was also intimated to the Bank on 24.07.2018. It is next submitted that the cheque in question was not returned with endorsement 'insufficient fund' but 'refer to drawer', therefore, no liability under Section 138 N.I. Act is attracted. It is further contented that the complaint is prematured as notice was sent on 31.08.2018 without giving any date of service of notice, therefore, as per the provision of General Clause Act, the notice would be deemed to have been served within 30 days i.e. by 01.10.2018, whereas the complaint was filed on 26.09.2018. 4. Per contra, learned AGA opposed the prayer and submitted that the grounds raised by the applicant regarding stop payment as well as missing of cheque are his defence that cannot be considered at this stage, therefore, there is no illegality in the impugned proceeding. 5. Considering the submission of counsel for the parties and perusal of record, it appears from the complaint that the cheque in question was given by the applicant to return the advance payment taken by him towards selling of his land to the opposite party no.2. The Apex Court in the case of Lafarge Aggregates and Concrete India Pvt. Ltd. vs. Sukarsh Azad and another; (2014) 13 SCC 779 has observed that if the cheque is returned by the Bank with endorsement 'refer to drawer', 'stop payment' and other usual endorsement, then the Magistrate is well within the jurisdiction to summon the accused and accused has right to raise objections during trial. So far as contention of counsel for the applicant that the complaint is premature as no date of service has been mentioned, this Court in the case of Rajendra vs State of U.P. 2024(5) ADJ 758, observed that if no date of service has been mentioned in the complaint then it would be deemed that notice would have been served within 10 days. Therefore, in the present case, in absence of mention of date of service, it would be deemed the notice sent through registered post on 31.08.2018 would have been served by 10.09.2018. Thereafter, after expiry of 15 days complaint could have been filed on or after 26.09.2018. Therefore contention of counsel for the applicant that the complaint is premature, is misconceived. However, all the grounds raised by the applicant is his defence that can be raised during trial. 6. In view of above, this Court does not find any illegality in the impugned order. Accordingly the present application is dismissed. Order Date :- 7.2.2025 A.Kr. Digitally signed by :- AJAY KUMAR High Court of Judicature at Allahabad