Neutral Citation No. - 2025:AHC:74809 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 15092 of 2025 Applicant :- Avadhesh Jaiswal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Karunesh Pratap Singh Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Karunesh Pratap Singh, learned counsel for the applicant as well as Sri Vikas Sharma learned State Law Officer 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 proceedings of Complaint Case No.18871 of 2024 (Shivam Mishra Vs. Avadhesh Jaiswal), under Section 138 of the N.I. Act, Police Station Shahpur, District Gorakhpur pending in the court of Civil Judge (S.D.), Court No.1, Gorakhpur. 3. Learned counsel for the applicant has submitted that a complaint was filed by the opposite party no.2 against the applicant on 25.4.2024 with an allegation that the applicant herein is dealing in sale and purchase of the property and the applicant has approached the opposite party no.2 for a financial assistance to the tune of Rs.15 lakhs, the applicant is stated to have given assurance that in case the amount is not paid then a registry will be made of a property in favour of the opposite party no.2. In order to discharge the liability, it is alleged that the applicant had drawn a cheque bearing no.533169 on 23.1.2024 for an amount of Rs.15 lakhs which on presentation in the bank was dishonoured on 13.3.2024, a statutory demand notice was issued on 1.4.2024 and thereafter the complaint was lodged on 25.4.2024. The applicant herein has been summoned by virtue of the order dated 28.6.2024 under Section 138 of the N.I. Act. 4. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for even a single moment. Elaborating the said submission, it is submitted that there happened to be a business transaction between the applicant and one Sri Arvind Kumar Dubey, son of Umakant with respect to an amount of Rs.6,80,000/- for which the applicant had given a cheque bearing no. 533166, 533167, 533168, 533169 and 533173 and notarized receiving was also prepared bearing the signatures of the witnesses also. He has further submitted that the entire amount was paid by the applicant receiving whereof is at page 40 of the paper book, however, Sri Arvind Kumar Dubey had lodged a first information report against the applicant under Sections 147, 406, 504, 506, 452, 430 IPC, FIR No.0167 on 26.5.2024, the applicant herein approached this Court and he was granted interim protection in Application U/S 528 BNSS No.6864 of 2025, Avadhesh Kumar Jaiswal and 2 others vs. State of U.P. and another on 3.3.2025. The opposite party no.2 Sri Arvind Kumar Dubey, thereafter planted the opposite party no.2 and got a complaint lodged under Section 138 of the N.I. Act relatable to the dishonouring of the cheque bearing no.533169 of an amount of Rs.15 lakhs. 5. Learned counsel for the applicant has also submitted that the applicant has already lodged an FIR on 30.6.2024 being FIR No.0206, under Sections 420, 419, 506, 504, 323, 452 IPC before the Police Station Pharenda, District Maharajganj against Arvind Kumar Dubey and the present complainant relatable to extortion of an amount of Rs.30 lakhs. 6. Submission is that there is no legal enforceable debt or liability so as to attract the provisions of Section 138 of the N.I. Act as virtually there happened to be no business relationship or otherwise with the applicant and the opposite party no.2 has been planted by Arvind Kumar Dubey just in order to lodge criminal proceedings and harass the applicant before different forums. 7. Learned State Law Officer on the other hand submits that once there happens to be a drawal of a cheque then the presumption under Section 139 of the N.I. Act would be there and whether the opposite party no.2 has been planted so as to inflict criminality is a question which is the subject matter of trial. 8. I have heard the submissions submissions of the counsel for the parties and perused the record carefully. Apparently, a complaint was lodged by the opposite party no.2 against the applicant on 25.4.2024 for dishonour of the cheque of Rs.15 lakhs followed by a statutory notice of the complaint. The question as to whether the opposite party no.2 has been planted or not is a question of trial. The Court at the stage of summoning is only required to perused the contents of the complaint whether complaint shows that the procedural part as envisaged under Section 138 read with Section 142 of the N.I. Act has been fully adhered to. 9. Interestingly, neither there is any argument nor even otherwise from the perusal of the record prima facie it can be said that there has been procedural infirmity. Apart from this, obviously presumption under Section 139 of the N.I. Act would always be there. The theory so sought to be propounded by the applicant that already the entire payment was made to Arvind Kumar Dubey and complainant herein had been planted just in order to harass and to entangle, the applicant before different forums is concerned, this Court is not required to delve into the said issues as it would be usurping the stage and the discretion to be exercised by the jurisdictional Magistrate. The defence is to be taken into consideration at this stage the post conduction of trial when it is to be determined and a finding is to recorded of acquittal or conviction. 10. Accordingly, no case is made out. The application stands rejected. Order Date :- 8.5.2025 piyush Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad