Neutral Citation No. - 2025:AHC:77008 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 16413 of 2025 Applicant :- Shrichand Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dur Vijay Singh,Kuldeep Singh Tomar Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Shri Dur Vijay Singh, learned counsel for the applicant and Sri Moti Lal, learned AGA for the State. 2. In view of the order, which is being proposed to be passed today, notices are not being issued to the respondent No. 2. 3. This application under Section 528 BNSS has been filed by the applicant to quash the summoning order dated 04-03-2024 passed by the learned Additional Chief Judicial Magistrate, court no. 2, Ghaziabad as well as entire criminal proceedings against the applicant in complaint case no. 13864 of 2021 (Old complaint no. 897/2014) (Ravikaran Singh Vs Shrichand) under section 138 Negotiable Instrument Act, Police Station Vijay Nagar, District Ghazizbad pending before the learned Additional Chief Judicial Magistrate, court no. 2, Ghaziabad. 4. Learned counsel for the applicant submits that a complaint was filed by the opposite party no. 2 against the applicant on 03.06.2014, under Section 138 of the N.I. Act with an allegation that with respect to the transaction of a sale of a plot of the land, a cheque for an amount of Rs. 10 Lakhs bearing No. 124913 dated 19.03.2014 was drawn by the applicant in favour of the opposite party no. 2 which came to be dishonoured on presentation, communication whereof was made on 31.03.2014 by the Bank, a statutory notice is stated to have been issued by the opposite party no. 2 dated 24.04.2014 which is stated to have been served on 28.04.2014 and the complaint in question was preferred on 03.06.2014. Learned counsel for the applicant has submitted that the said application came to be withdrawn vide order dated 25.08.2014 in Complaint Case No. 897 of 2014 (page 35) by the Court of Additional Civil Judge (Junior Division), Judicial Magisrate-I, Ghaziabad. However, according to the learned counsel for the applicant, an application came to be preferred in Complaint Case No. 897 of 2014 which has already been dismissed as withdrawn, on 01.09.2021, reference whereof Annexure-4 at page 38, relevant extract at page 40, reference whereof has been made in paragraph no. 8 of the application, the said application also contained assertions regarding grounds for condonation of delay and the court below on the basis of averments in the said application proceeded to summon the applicant on 04.03.2024. 5. Questioning the summoning order dated 04.03.2024 passed by the Court of Additional Chief Judicial Magistrate, court no. 2, Ghaziabad, the applicant has been filed the present application. 6. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reason, first of all, once the complaint case stood dismissed as withdrawn on 25.08.2014 then of-course, a second compliant case ought to have been preferred but the reality is that an application for recalling of the said order along with the delay of condonation had been filed after approximately seven years, it has been allowed even without putting the applicant to notice. Secondly, the exorbitant delay of seven years could not have been condoned on mere asking, particularly, when it is the matter of fact that the grounds were taken that Corona had also spread through out the nation. Submission is that that condonation of delay on the ground of the extension of the limitation would only arose once the application itself is maintainable and also the fact that the Corona was not for a period of seven years as it was from 25.03.2020 to March 2022. Thirdly, the summoning order is cryptic in nature as it seeks to summon the applicant without application of mind. 7. Learned AGA on the other hand submits that be that as it may be, the contention so sought to be raised, the applicant had not been dealt with in correct perspective though they were required to be dealt with. He submits that the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders. 8. I have heard learned counsel for the parties and gone through the records carefully. 9. The question which is to be addressed by the court below at the first instance would be; (a) whether the application preferred on 01.09.2021 for recalling of the order dated 25.08.2014 dismissing the complaint as withdrawn was maintainable; (b) whether there was sufficient grounds to condone the delay; (c) the issue of putting to notice the accused/applicant. 10. Since the aforesaid crucial issues which can be germane and a fact to be considered while taking decision to summon or not. The order dated 04.03.2024 passed by the Court of Additional Chief Judicial Magistrate, court no. 2, Ghaziabad is set aside. The matter stands remitted back to pass fresh order strictly in accordance with law. 11. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 30.05.2025 and the court below shall proceed to decide the said proceeding with most expedition. 12. Needless to point out that the Court has not adjudicated upon the merits of the case. 13. Accordingly, the application stands disposed of. 14. It shall be open for the parties to prefer an application, in case, it is aggrieved. Order Date :- 12.5.2025 A. Prajapati Digitally signed by :- ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad