Neutral Citation No. - 2025:AHC:93426 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 13681 of 2025 Applicant :- Sanjay Mishra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Harish Chandra,Sanjay Kumar Nigam Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Subhash Chandra Yadav, learned counsel for the applicant as well as Sri Moti Lal, learned AGA for the State/opposite party no.1. 2. This application under Section 528 of the BNSS has been filed by the applicant to quash the entire proceeding of Complaint Case No. 95351/2023 (Raman Chaurasiya VS. Sanjay Mishra) U/S 138 N I Act. P.S. Anwarganj, District: Kanpur Nagar. Pending before the court of Sppecial Judge N. I. Act. Kanpur Nagar., as well as summoning order dated 10.08.2023. 3. The case of the applicant is that a complaint was lodged by the opposite party no.2 against the applicant with an allegation that three cheques No.138830 of Rs.2,00,000/- dated 29.1.2023, cheque no.138831 of Rs.1,00,000/- dated 5.2.2023 and cheque no.138832 of Rs.1,00,000/- dated 6.2.2023 was drawn by the applicant which was presented in the bank on 15.2.2023 and on 20.2.2023, the same stood dishonoured which was not cleared then again the said was presented on 31.3.2023 again it was returned on 3.4.2023 that the account was closed, a statutory demand notice is stated to have issued on 26.4.2023 followed by a complaint on 19.5.2023 thereafter the applicant has been summoned on 10.8.2023 by the court of Metropolitan Magistrate 5th Kanpur Nagar in complaint case no.95351 of 2023. 4. Questioning the summoning order the applicant has filed the present application. 5. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for a single moment particularly in view of the fact that firstly there was no legal enforceable debt so as to attract the provisions of Section 138 of the N.I. Act and secondly the account stood closed on 26.10.2014 however, the signed cheques were with the opposite party no.2 which were misutilized while filling up the figures and the same was presented in the bank and got dishonoured. Further submission is that the said cheques were with the opposite party no.2 as security. Lastly, the bank from which the cheque was drawn being ING Vysysa Bank stood merged with Kotak Mahindra Bank (Kotak) w.e.f. 7.4.2015 thus the instrument became invalid and no criminality with regard to attraction of Section 138 of the N.I. Act could have been fasten in view of the judgement of this Court in Application U/S 482 No.9536 of 2024, Smt. Archana Singh Gautam vs. State of U.P. and another decided on 5.6.2024. 6. Learned AGA on the other hand submits that once the cheques stood drawn then presumption under Section 139 of the N.I. Act would be in favour of the holder of the cheque. 7. I have heard the submissions so made across the bar and perused the record carefully. Apparently, as per the allegations three cheques stood drawn by the applicant dated 29.1.2023 of Rs.2,00,000/- and 6.2.2023 of Rs.1,00,000/- which was not cleared and returned on two occasions firstly on 20.2.2023 and secondly on 3.4.2023. So far as the first contention so sought to be raised by the learned counsel for the applicant that there is no legal enforceable debt is concerned in view of the fact that the cheque was kept as a security the same is not convincible particularly in view of the fact that the same is a subject matter of trial. 8. 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." 9. In Sunil Todi and others Vs. State of Gujarat, (2022) 16 SCC 762 the Hon'ble Apex Court has reiterated the aforesaid law. 10. With respect to the second argument that the said document was became invalid document post merger while relying upon the judgement in Smt. Archana Singh Gautam(supra) is concerned the same would be of no aid and assistance as the cheque which has been returned is on account of account closed. Even otherwise the learned counsel for the applicant has also produced before this Court the two documents to show that the account stood opened on 3.12.2011 and the same was closed on 26.10.2014 thus the import and the impact of the merger of the bank on 7.4.2015 would be of no aid and assistance particularly when reasons for dishonour is on account of account closed. 11. This Court at this juncture is not required to delve into the said issue any further particularly when it is a subject matter of trial. 12. Apart from the same the Hon'ble Apex Court in the case of M/s Laxmi Dyechem vs State Of Gujarat & Ors (2012) 13 SCC 375 had also opined that the reasons for dishonour being account closed also come within the ambit of the offence under Section 138 of the N.I. Act. 13. No case is made out to interfere at this stage. 14. Accordingly, the application stands rejected. Order Date :- 30.5.2025 piyush Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad