Neutral Citation No. - 2025:AHC:79399 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 15675 of 2025 Applicant :- Shivram Opposite Party :- State of U.P. and Another Counsel for Applicant :- In Person Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Shiv Ram, applicant in person as well as Sri S.K. Singh, learned AGA for the State/opposite party no.1. 2. This application under Section 528 BNSS has been filed by the applicant to quash the impugned non-bailable warrant dated 01.04.2025 & Section 82 Cr.P.C. as well as entire Kurki proceedings of Colmplaint Case No. 115721 of 2023 (Km. Riya v. Shiram) under Section 138 of N.I. Act, police station Nawabganj, District Kanpur Nagar, pending before the court of Civil Judge (JD), Kanpur Nagar. 3. Earlier the applicant has approached the Court under Section 528 BNSS No. 917 of 2025 in which on 15.01.2025, the following orders were passed: "1. Heard in person as well as Sri Mohd. Shoeb Khan, learned A.G.A for the State and perused the record. 2. The instant application has been filed to quash the summoning order dated 17.08.2023 as well as entire proceedings of Complaint Case No.115721 of 2023 (Km. Riya Vs. Shivram), under Section 138 N.I. Act, P.S. Nawabganj, District Kanpur Nagar, pending in the court of Civil Judge (J.D.), Kanpur Nagar. 3. Contention of applicant is that the cheque in question was not issued in discharge of any liability, therefore, no offence under Section 138 N.I. Act is made out and court below has erroneously summoned him under Section 138 N.I. Act. 4. Per contra, learned A.G.A. has vehemently opposed the prayer made by applicant and submitted that from the perusal of the averments made in the impugned complaint, it is clear that in discharge of liability for payment of arrear of maintenance granted under Section 125 Cr.P.C. in Case No.496 of 2013, the applicant had given the cheque of Rs.50,000/- which is in question in the impugned proceeding when that cheque was presented before the Bank, same was returned for insufficiency of fund, therefore, there is no illegality in the impugned proceeding. 5. After hearing the applicant in person and learned A.G.A. for the State as well as on perusal of record, it appears that the applicant no.1 is the father of the opposite party no.2. There is matrimonial discord between Pinki (who is mother of opposite party no.2 and wife of applicant) as well as the applicant. The opposite party no.2 along with her mother filed application under Section 125 Cr.P.C., which was registered as Case No.496 of 2013, in which a direction was made to pay Rs.10,000/- per month as interim maintenance to Pinki and her two daughters including the opposite party no.2. When the maintenance was not paid then the opposite party no.2 through her mother filed an application to recover the arrears of maintenance, thereafter, present applicant had given a cheque of Rs.50,000/- dated 10.04.2023 to the opposite party no.2 in discharge of part payment of arrears of maintenance. That cheque was presented before the Bank on 07.06.2023 and same was returned back on 12.06.2023 with endorsement of fund insufficient. Thereafter, a registered notice was also sent on 16.06.2023 by the opposite party no.2 but despite receiving that notice, cheque amount was not paid, therefore, the complaint in question was filed. 6. From the above facts, it is clear that the cheque in question was issued in discharge of liability for payment of maintenance to opposite party no.2 and when the cheque was bounced by the Bank with endorsement fund insufficient even then the cheque amount was not paid by the applicant despite receiving demand. Therefore, prima-facie, offence under Section 138 N.I. Act is made out and there is no illegality in the impugned proceeding. 7. In view of the above, this Court does not find any illegality in the impugned proceeding and the present application is dismissed. 8. However, it is open for the applicant to raise all his defense before the court below, during trial." 4. The applicant in person has argued that due to certain unavoidable circumstances which were beyond the control and comprehension of the applicant, he could not participate in the proceedings and non-bailable warrants as well as entire Kurki proceedings has been initiated. Fe further submits that the orders came to be passed on 01.03.2025 and 01.04.2025. Learned counsel for the applicant submits that the applicant be given a breathing time to appear to the court below and to file a recall application and till recalling application is decided, no corrective action shall be taken against applicant. 5. Learned AGA on the other hand submits that he has no objection to the same. 6. Considering the submissions of the rival parties as well as stand taken by them, the application stands disposed of directing the applicant to a prefer a recall application before the court of Civil Judge (JD), Kanpur Nagar by 06.06.2025. 7. On the said application, the court below shall consider the recall application strictly in accordance with law subject to statutory compliances to be made by the applicant as per the statute. 8. Till 45 days or disposal of the recall application, no coercive action shall be taken against the applicant with respect to the impugned non-bailable warrant dated 01.04.2025 & Section 82 Cr.P.C. as well as entire Kurki proceedings of Colmplaint Case No. 115721 of 2023 (Km. Riya v. Shiram) under Section 138 of N.I. Act, police station Nawabganj, District Kanpur Nagar, pending before the court of Civil Judge (JD), Kanpur Nagar. Order Date :- 14.5.2025 A. Prajapati Digitally signed by :- ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad