Neutral Citation No. - 2025:AHC:74374 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 6538 of 2025 Applicant :- Mohd. Naushad Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kushagra Srivastava,Shahrukh Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Shahrukh learned counsel for the applicant as well as Sri Naushad, learned AGA for the State/opposite party no.1. 2. This application under Section 528 of the BNSS has been filed by the applicant against the opposite party no.2 on 8.2.2023 with an allegation that certain amount was advanced by the opposite party no.2 to the applicant to the tune of Rs.48.80 lakhs and two cheques were drawn bearing no. 000721 and 000741 ICICI Bank on 13.12.2022 and when the same was presented in the bank, it was dishonoured on 14.12.2022, a statutory legal notice was issued on 27.12.2022 which was served on 3.1.2023. 3. Learned counsel for the applicant submits that there were two cheques which were dishonoured but the applicant has been summoned with respect to one of the cheques being 000741. He further submits that the said cheques were with the opposite party no.2 as security and the same has been misutilized in such a manner that even after the payments have been made, they have been presented in the bank and got dishonoured.He further submits that the summoning order is cryptic. 4. Learned A.G.A. on the other hand submits that the presumption under Section 139 of the N.I. Act is against the applicant. 5. I have heard the submissions so made across the bar and perused the record carefully. Apparently, two cheques is stated to have been drawn by the applicant bearing no.000721 and 000741 both dated 13.12.2022 of an amount of Rs.10 lakhs which has stated to have been dishonoured, a statutory notice is also stated to have been issued which is claimed to have been served upon the applicant. The first and the foremost question would be whether the said cheques can be said to be presented as a security or not is a question of trial which cannot be gone into at this stage. 6. The Hon'ble Apex Court in the case of M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another (2022) 18 SCC 631 has observed as under:- "In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques." 7. In Sunil Todi and others Vs. State of Gujarat, (2022) 16 SCC 762 the Hon'ble Apex Court has reiterated the aforesaid law. 8. Thus it can be safely said that the issue as to whether a cheque was a subject matter as security is a matter of trial and this Court at the summoning stage is not required to endorse the view of the either side. 9. As regards the submission of learned counsel for the applicant that though two cheques were dishonoured but the applicant has been summoned with respect to only one cheque is concerned the same is neither here or there, it nowhere prejudices the case of the applicant as it may have its own effect and the ramification when the trial is conducted. 10. Accordingly no case is made out for interference in the proceeding. The application is rejected. Order Date :- 8.5.2025 piyush Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad