HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 38825 of 2025 Court No. - 76 HON'BLE VIKRAM D. CHAUHAN, J. 1. Heard learned counsel for the applicant and learned AGA for the State- respondent. 2. This application has been filed by applicant for quashing the impugned order dated 10.7.2025 passed by Additional Civil Judge (J.D.)/J.M., Court No.4, Amroha in Complaint Case No.5397 of 2023, Shikha Garg Vs. Mahtab and order dated 5.1.2023 passed by Second Additional Civil Judge (J.D.)/Judicial Magistrate, Amroha, under Section 138 N.I. Act, Police Station Gagraula, District Amroha. 3. It is submitted by learned counsel for the applicant at the stage of Section 200 and 202 Cr.P.C. only the complainant was examined and no witness was examined. Subsequently, an affidavit of P.W.2-Sanjay Garg was filed. The aforesaid affidavit was in contravention of Section 254 Cr.P.C. The affidavit is not admissible by way of evidence. There is no opportunity to cross-examine the same. The applicant filed an objection objecting to the aforesaid and the same has been rejected. 4. Learned counsel for the applicant has relied upon sub-clause (2) of Section 254 Cr.P.C. to submit that if there is any application, the court can direct for summoning or any witness, however, in the present case, no such procedure has been followed. 5. Learned counsel for the applicant submits that as per the complaint the machine was supplied by the complainant to the accused on installment of Versus Counsel for Applicant(s) : Mohammad Fazil, Salman Ahmad Counsel for Opposite Party(s) : G.A. Mahtab Ali .....Applicant(s) State of U.P. and Another .....Opposite Party(s) Rs.24,610/- and the accused has paid a sum of Rs.2,46,010/- and the remaining amount which included interest and penalty was not paid which was a sum of Rs.6,77,494/-. As per the complaint, the cheque of Rs.6,77,494/- has been alleged to have been dishonoured. Learned counsel for the applicant by relying upon the statement of the complainant submits that the total value of purchase was to the extent of Rs.7,12,000, out of which, Rs.2,46,010/- was already paid as such the payment of remaining amount of Rs.6,77,494/- would not arise and as such the cheque in question was not in discharge of the debt alleged in the incident. 6. In the present case, it is to be seen that in so far as the argument of learned counsel for the applicant that the affidavit of one Sanjay Garg was filed as P.W.2 in the trial court proceedings, although the aforesaid person was neither examined as witness at the stage of Section 202 Cr.P.C. nor any application was filed bringing on record Sanjay Gard as P.W.2. 7. The submission of learned counsel for the applicant is that in view of the procedure laid down in Section 254(2) Cr.P.C. only on an application of the prosecution or the accused, summons can be issued to any witness. The affidavit is not admissible as evidence. More particularly, when the aforesaid Sanjay Garg has not been shown as a witness in the proceedings. The trial court has rejected the objections by order dated 10.7.2025. 8. It is further to be seen that the question of admissiblity of any evidence is to be decided at the time of final hearing. If the procedure is not followed, then it is always open for the applicant to raise objection before the trial court. If the trial court treats any evidence in support of the complaint, then the opportunity of cross-examination is required to be given to the applicant. At this stage, the question of admissibility of the evidence is not required to be considered and it is for the trial court to consider at the appropriate stage. 9. So far as the question with regard to the quantum of the amount due is concerned, it is not disputed by the applicant that the machine was supplied and the amount was to be paid in installment. The dispute NA528 No. 38825 of 2025 2 pertains that as per the applicant, the value of the machinery was Rs.7,12,000/-. However, Rs.2,46,010/- as already paid and the remaining amount of Rs.6,77,494/- could not have been arrived at after deduction of the amount already paid. As per the complainant's case, the dishonour of cheque in question also includes the interest and penalty. Such questions are question of fact, which are required to be raised before the trial court by leading evidence. At this stage, it is not appropriate for this Court to hold a mini trial and consider the aforesaid issues. All the issues are open before the trial court. 10. In view of the aforesaid, the present application lacks merit and is, accordingly, dismissed. October 14, 2025 Bhaskar NA528 No. 38825 of 2025 3 (Vikram D. Chauhan,J.) Digitally signed by :- BHASKAR High Court of Judicature at Allahabad