Neutral Citation No. - 2025:AHC:70060 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 5829 of 2025 Applicant :- Amit Kumar Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anurag Singh Counsel for Opposite Party :- G.A.,Shashank Sharma Hon'ble Vikas Budhwar,J. 1. Heard Shri Anurag Singh, learned counsel for the applicant and Sri Ram Awadh Maurya, learned State Law Officer for the State as well as Shri Shashank Sharma, counsel for opposite party no. 2. 2. This application under Section 482 Cr.P.C. has been filed by the applicant to quash the Summoning orders dated 05/12/2024 passed by Presiding Officer, Additional Civil Judge (Junior Division) Court No. 5, District Kanpur Nagar in complaint case no. 77034 of 2024 (Niti Bajpayee Vs. Amit Kumar Sharma), under section 138 N.I Act., Police Station Badshahinaka, District Kanpur Nagar, and Pending before Court of Presiding Officer, Additional Civil Judge (Junior Division) Court No. 5, District Kanpur Nagar, 3. Learned counsel for the applicant submits that a complaint was lodged by the opposite party no. 2 against the applicant on 06.09.2024 under Section 138 of the N.I. Act with an allegation that the applicant and the opposite no. 2 knew each other and on 01.07.2024 with relation to discharging of a debt of an amount of Rs.12,00,000/- cheque bearing No. 023219 for an amount of Rs.6,50,000/- and cheque no. 023220 of Rs.3,50,000/- dated 03.07.2024 was drawn which on presentation in the bank on 03.08.2024 was dishonored on 05.08.2024 with the remarks "Payment Stopped by Drawer" and thereafter a statutory demand notice was issued on 13.08.2024 which was received by the applicant on 14.08.2024, reply whereof was submitted on 27.08.2024 and the complaint was filed on 06.09.2024. Learned counsel for the applicant submits that in the light of provisions contained under proviso to Section 223 of the BNSS, the applicants were put to notice, the applicants submitted their reply and thereafter now summoning order has been passed by the court below on 05.11.2024. 4. Contention of the learned counsel for the applicant is that cheques had already lost in the year 2022 and the complaint was also lodged on 22.04.2022 at page 52 of the paper book, however, the said cheques were missutilized and misused by the opposite party no. 2 who happened to be, a regular visitor of the chamber of the applicant. Submission is that no legally, enforceable debt is there so as to invoke the provisions under Section 138 of the N.I. Act. He submits that the contention so sought to be raised by the applicant in his reply had been noticed by the court below while summoning the applicant but there is no consideration whereof. Thus, it is prayed that the order be set aside. 5. Learned counsel for the opposite party No. 2 submits that the issue as to whether, the cheque stood misplaced is a matter of trial, further presumption under Section 139 of the N.I. Act is always there. 6. I have heard learned counsel for the parties and gone through the records carefully. 7. The sole question which arises for determination in the present proceedings is to the extent of judicial intervention. Apparently, two cheques for an amount of Rs.6,50,000/- and Rs. 3,50,000/- stood drawn which have been dishonored, pursuant whereto statutory demand notice was issued and complaint was filed and the court below before summoning the applicant put to notice in terms of provisions of proviso to Section 223 of the BNSS. The sheet-anchor of the argument of the learned counsel for the applicant is that the said cheques stood misplaced and they have been miss-utilized. The issue as to whether there is any scope of miss-utilization or misusing is a matter of trial, which cannot be gone into. Moreover, the same would have an effect at the time when the trial commences and a stage comes where it would be a case of conviction or acquittal. Moreover, at the stage of summoning these are not the relevant considerations to be taken note of. Apart from this, there happens to be presumption under Section 139 of the N.I. Act in favour of the holder. 8. In view of the said discussion, no case is made out. Accordingly, the application stands dismissed. 9. In the opinion of the Court, once a bail application is preferred then the same shall be considered with most expeditions strictly as per the law of the land without any delay. Order Date :- 2.5.2025 A. Prajapati Digitally signed by :- ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad