Neutral Citation No. - 2025:AHC:89885 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 14944 of 2025 Applicant :- Naeem Babu Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pawan Kumar Shukla Counsel for Opposite Party :- G.A.,Keshari Nath Tripathi Hon'ble Vikas Budhwar,J. 1. Heard Sri Pawan Kumar Shukla, learned counsel for the applicant, Sri Indrajeet Singh Yadav, learned A.G.A. for the State and Sri Aniket Kumar (AoR No.A/A1736/2023) holding brief of Sri Keshari Nath Tripathi for O.P. No.2. 2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 04.01.2023 and entire proceeding of Complaint Case No. 44677 of 2022 (Shakir Vs. Naeem Babu) under section 138 of N.I. Act, Police Station- Civil Lines, District-Moradabad, pending in the Addl. Court, 138 N.I. Act, Moradabad. 3. The case of the applicant is that on 23.08.2022, a complaint was lodged by O.P. No.2 against the applicant under Section 138 of N.I. Act with an allegation that with respect to discharge of the liability pursuant to purchase of certain item, a cheque bearing number "33022766" dated 07.07.2022 of Rs.9,15,000/- was drawn by the applicant in favour of O.P. No.2, which on presentation in the bank on 01.08.2022 was dishonoured on 01.08.2022, and the statutory demand notice is stated to have been issued on 03.08.2022 followed by complaint on 23.08.2022. Thereafter the applicant has been summoned on 04.01.2023 under Section 138 of N.I. Act. Learned counsel for the applicant has submitted that there is no legally enforceable debt or liability attracted upon the applicant for the simple reason that there happened to be a compromise entered into between the parties on 11.01.2022, wherein a security cheque was kept with the O.P. No.2 bearing number "33022766" and the amount which was compromised was Rs.215000/-, however, the blank signed cheque was filled by O.P. No.2 while inserting the figure of Rs.9,15,000/- and the same was dishonoured. Contention is that no offences under Section 138 of N.I. Act stands made out against the applicant. 4. Learned counsel for the O.P. No.2 disputes the factum of entering into compromise. He further submits that once the cheque stood drawn and it was dishonoured, then offences were made out. 5. Learned A.G.A. has supported the arguments of learned counsel for O.P. No.2. 6. I have heard the submissions so made across the Bar and perused the record carefully. 7. Apparently, the allegation in the complaint is regarding dishonouring of a cheque of Rs.9,15,000/- on 01.08.2022 followed by a statutory demand notice on 03.08.2022 and a complaint. The question as to whether there was a compromise or not is a question of fact, which is only a subject matter of trial, particularly when the compromise is stated to be on a non-judicial stamp of 10 rupees. Once, the O.P. No.2 disputes the factum of entering of the compromise, then this Court is not required to adjudge or express any opinion upon the same. Moreover, the question of misutilization of cheque is also a question of trial, which might be a consideration, post-trial for taking a decision for acquitting or convicting the accused. In so far as the argument that the said cheque was a security cheque is concerned, the same is also a subject matter of trial as held by the Hon'ble Apex Court in M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another, (2022) 18 SCC 631. The Hon'ble Apex Court 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." 8. The aforesaid law has been followed subsequently in Sunil Todi and others vs. State of Gujarat, (2022) 16 SCC 762. 9. At this stage, learned counsel for the applicant has made a statement at Bar that the applicant would approach the court below for compounding of the offences under Section 147 of the N.I. Act and a direction be issued to the court below to decide the application in light of the judgment in the case of Damodar S. Prabhu Vs. Syed Babalal, (2010) 5 SCC 663 and till the said application is preferred, protection be accorded. 10. Learned A.G.A. has no objection to the same. 11. Considering the submissions so made across the Bar, the application is disposed of directing the applicant to file the proceedings for compounding under Section 147 of N.I. Act by 13.06.2025 and the court below is directed to decide the same with most expedition, preferably within 45 days. 12. Till 45 days from today, no coercive action shall be taken against the applicant with respect to summoning order dated 04.01.2023 and entire proceeding of Complaint Case No. 44677 of 2022 (Shakir Vs. Naeem Babu) under section 138 of N.I. Act, Police Station- Civil Lines, District-Moradabad, pending in the Addl. Court, 138 N.I. Act, Moradabad. 13. The protection accorded to the applicant is only available subject to compliance of terms and conditions and timeline as provided herein and in case of default, the order shall stand vacated without reference to the Bench. Order Date :- 27.5.2025 N.S.Rathour (Vikas Budhwar, J) Digitally signed by :- NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad