Neutral Citation No. - 2025:AHC:86166 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 14702 of 2025 Applicant :- Udayveer Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashish Goyal Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Ashish Goyal and Sri Sudhir Kumar Chandraul, learned AGA for the State. 2. This application u/s 528 of BNSS has been preferred to set aside the impugned Summoning order dated 06.02.2024 passed by Additional Chief Judicial Magistrate, Court No.1, Agra in Complaint Case No. 339 of 2024 (Hariom Pandit and Company Vs. Udayveer Singh), Under Section 138 N.I. Act, Police Station Sikandra, District Agra, pending before the court of Additional Chief Judicial Magistrate, Court No.1, Agra. 3. The case of the applicant is that there happens to be a business relationship between the applicant and the opposite party no. 2 and as per the allegations with respect to purchase of potatoes, an amount of Rs. 5,00,000/- became due and payable to the opposite party no. 2 by the applicant and a cheque bearing no. 877316 dated 03.11.2023 of an amount of Rs. 5,00,000/- was drawn which on presentation in the bank was dishonored on 04.11.2023 with the remarks “ fund insufficient”, a statutory demand notice is stated to have been issued on 25.11.2023 which was received on 28.11.2023 and since the payments were not made so on 19.12.2023, the complaint was filed. Thereafter, on 06.02.2024 the Court of Additional Chief Judicial Magistrate, Court No. 1, Agra in Complaint Case No. 339 of 2024 has summoned the applicant under Section 138 of the NI Act. 4. Questioning the summoning order, the applicant has filed the present application. 5. Learned counsel for the applicant has submitted that with respect to the purchase of potatoes, the subject cheque was kept as security with the opposite party no. 2 and there happens to be a notorised agreement on 10 rupees non-judicial stamp whereby, it was recited that the part payment was made of an amount of Rs. 1,35,040/- followed by the residue amount of Rs. 99,200/- also and since the opposite party no. 2 had lost the cheque, thus, it was agreed that the said cheque would be not used in any manner. Submission is that now the said cheque stands deposited in the bank by the opposite party no. 2 for ulterior motives and the same was dishonored entailing issuance of the order summoning the applicant. Submssion is that in view of the payment so made as reflected in the notorised agreement of Rs. 1,35,040/- and 99,200/- the total amount due and payable would not be the amount as mentioned in the cheque on the date of its maturity as the applicant would be entitled to the benefit of Section 56 of the NI Act. He, thus, submits that there is no legally enforceable debt or liability of the amount as reflected in the cheque on maturity. 6. Learned AGA, on the other hand, submits that once a cheque stood drawn then the presumption would be in favour of the holder and whatever arguments are being sought to be raised they are the matter of trial. 7. Having heard the submissions so made across the bar and perused the record carefully. 8. Apparently, the allegation is with regard to dishonoring of a cheque of an amount of Rs. 5,00,000/- dated 03.11.2023 bearing no. 877316 when presented in the bank on 04.11.2023 on account of insufficient fund followed by a registered demand notice dated 25.11.2023 which is stated to have been served upon the applicant on 28.11.2023 and the complaint on 19.12.2023. The first and foremost question which would arise whether the provisions of Section 56 of the NI Act would come to the rescue of the applicant particularly when part payment had already been made by the applicant to the tune of Rs. 1,35,040/- and 99,200/- out of the total amount due and payable as reflected in the cheque being Rs. 5,00,000/-. The question would be obviously no for the simple reason that first of all, the notorised agreement which is sought to be relied upon by the applicant does not speak about the date on which the payment has been made. Further the question as to whether the said notorised agreement was executed or not cannot be gone into at this stage when the summoning order has been challenged as the same may be one of the defences whose velocity and magnitude is to be tested on his own strength when the trial commences. 9. Importantly, the fact as to whether the cheque in question is a security cheque or not is also a matter of trial adjudication on the said issue is not required to be done at this stage in the present proceedings when summoning order has been challenged. In M/s Womb Laboratories Pvt. Ltd. vs Vijay Ahuja 2022 (18) SCC 631 the Hon'ble Apex Court had the occasion to deal with the said question. In Sunil Todi vs the State of Gujarat 2022 (16) SCC 762 the aforesaid law has been reiterated. 10. Moreover, at the stage of summoning what is required to be seen is whether there has been procedural fulfilment of the requirements. Since nothing has been brought on record to substantiate that there had been procedural infirmity, this Court is not required to adjudge the merits of the matter. Moreover, once a cheque stands drawn and it gets dishonored then the presumption under Section 139 of the NI Act is always in favour of the holder of the cheque. 11. Accordingly, no case is made out for interference, the application is consigned to record leaving it open to the applicants to prefer appropriate proceedings before the court below for enlargement on bail, the same may be decided with most expedition in accordance with law of the land. Order Date :- 20.5.2025 Rajesh Digitally signed by :- RAJESH KUMAR High Court of Judicature at Allahabad