Neutral Citation No. - 2025:AHC:41249 Court No. - 74 Case :- APPLICATION U/S 528 BNSS No. - 8942 of 2025 Applicant :- Hazi Irshad Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kamal Kishor Mishra,Sharad Rastogi Counsel for Opposite Party :- G.A. Hon'ble Saurabh Srivastava,J. 1. Heard Sri Kamal Kishor Mishra, learned counsel for the applicant, learned A.G.A. for the State-respondent, and perused the record. 2. The present application, filed under Section 528 of the BNSS, seeks quashing/stay of the entire proceeding of Complaint Case no. 2023 of 2023 as well as summoning order dated 28.02.2024 passed by learned Additional Civil Judge (J.D.) F.T.C, Judicial Magistrate, Ghaziabad whereby the applicant has been summoned to face the criminal trial under Section 138 N.I. Act, Police Station Kavi Nagar, District Ghaziabad. 3. Learned counsel for applicant submitted that opposite party no. 2 filed a complaint case on dated 29.10.2022 before the court of learned Civil Judge, Junior Division/ F.T.C., Ghaziabad which has been registered as Complaint Case no. 2023 of 2023, under Section 138 N.I. Act, PS- Kavi Nagar, District Ghaziabad. In the said complaint, allegation has been made that complainant lent amount of Rs. 45 lacs to applicant but for the purpose to return the same, applicant gave the complainant cheque amounting to Rs. 2 lac which has been dishonored by the concerned Bank with remark that the account is closed. 4. After recording the statements of the complainant and other witnesses and perusing the complaint, learned Magistrate summoned the applicant to face the trial under Section 138 N.I. Act vide order dated 28.02.2024. 5. It is argued by learned counsel for applicant that in the alleged notice dated 07.10.2023, the complainant has demanded the interest as well as cost of legal notice which is not permissible in the eye of law. No amount is due upon the applicant and in contrary Rs. 8 lac of applicant is due upon the complainant itself regarding which applicant has also lodged a FIR bearing Case Crime no. 306 of 2022 whereupon after submission of charge sheet learned Magistrate took cognizance on dated 24.08.2022. For substantiating his arguments, learned counsel for applicant relied upon judgment rendered by Hon'ble Kerala High Court in case of A.C.Raj, Inchivila, Thottathu Veedu, Parasala vs. M. Rajan, Ezhakudivila Veedu and another reported in 1997 Crl. L. J. 1939 wherein it has been held that notice claiming amount together with interest without specifying rate of interest and amount of interest, cannot be treated as notice contemplated by Section 138 (b) of N.I. Act. 6. Per contra, learned AGA vehemently opposed the prayer sought through the instant petition. 7. In view of the order proposed to be passed, process to issue notice to respondent no. 2 is hereby dispensed with. 8. After hearing the rival submissions extended by learned counsels for the parties and perusing the records, this Court is of the opinion that at the stage of summoning, the Magistrate is only required to record a prima facie opinion, based on the material on record, and is not expected to hold a mini trial or to examine the defence of the accused. In judgment rendered by Hon'ble Apex Court in case of S.W. Palanitkar and Others v. State of Bihar and Another; (2002) 1 SCC 241 it was held that the test which was required to be applied was whether there is "sufficient ground for proceeding" and not whether there is "sufficient ground for conviction". In the case of Nupur Talwar v. Central Bureau of Investigation and Another; (2012) 11 SCC 465, it was reiterated that the limited purpose of consideration of material at the stage of issuing process being tentative as distinguished from the actual evidence produced during trial, the test to be applied at the stage was whether the material placed before the Magistrate was "sufficient for proceeding against the accused" and not "sufficient to prove and establish the guilt". 9. The aforementioned legal position has been considered in a recent decision of this Court in the judgment dated 6.5.2024 passed in Matters under Article 227 no. 3254 of 2024 (Kailash and another vs. State of U.P. and another). 10. None of the grounds raised through the instant application are convincing enough so as to attract interference of this Court. So far as the judgment of A.C.Raj, Inchivila, Thottathu Veedu, Parasala (supra) is concerned, the same has been passed after culmination of trial but in the instant matter only the applicant has been summoned till today and as such the said judgment is not applicable in the instant matter. 11. From perusal of the material on record, at this stage, it cannot be said that no offence is made out against the petitioners. The assertions of false implication raised by the applicant are factual issues that requires proper adjudication by the trial court based on evidence and cannot be conclusively determined in proceedings under Section 528 BNSS. 12. It is well settled that the inherent powers under Section 528 BNSS are to be exercised sparingly and with caution, primarily to prevent abuse of the process of the court or to secure the ends of justice. In the instant case, no sufficient ground have been made out to invoke the extraordinary jurisdiction of this Court under Section 528 BNSS. 13. In view of the foregoing, the application under Section 528 BNSS is devoid of merits and is accordingly dismissed. Order Date :- 20.3.2025 Shaswat Digitally signed by :- SHASWAT SINGH High Court of Judicature at Allahabad