Neutral Citation No. - 2025:AHC:82346 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 17426 of 2025 Applicant :- Qamrul Hasan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kalp Dev Mishra Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Kalp Dev Mishra, learned counsel for the applicant and Sri Moti Lal, learned A.G.A. for the State. 2. In view of the order which is being proposed to be passed, notices are not being issued to O.P. No.2. 3. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 24.12.2024 as well as entire proceedings of Complaint Case No. 7762 of 2024 (Mohd. Sharif Siddiqui Vs. Qamrul Hasan) under Section 138 N.I. Act, Police Station- Sadar Bazar, District- Saharanpur. 4. The case of the applicant is that on 28.10.2024, a complaint was lodged by O.P. No.2 against the applicant under Section 138 of the N.I. Act with an allegation that with respect to discharge of a liability of an amount of Rs.50,07,031/- the applicant herein had drawn two cheques bearing number '708844 dated 27.07.2024 of Rs.22,45,000/- another cheque dated 16.08.2024 bearing number "798378 of Rs.2761200/-. The cheque no. 798378 was presented in the bank, however, the same was dishonoured on account of the funds insufficient on 19.08.2024 and on the assurance of the applicant again the said cheque was presented in the bank on 27.08.2024, which was dishonoured on 28.08.2024 with the remark 'payment stopped by drawer'. As regards the second cheque, bearing number '708844' of an amount of Rs.22,45,000/-, the same was presented in the bank on 29.08.2024, which was dishonoured on the same day. A statutory notice is stated to have been issued on 13.09.2024 by the O.P. No.2 upon the applicant which is stated to have been served on 18.09.2024 and thereafter the complaint was lodged. 5. In accordance with the first proviso to Section 223 of the BNSS at pre- cognizance stage, a notice is stated to have been sent to the applicant to accord him opportunity to have his say. However, the same was not responded by the applicant. Thereafter on 24.12.2024, an order came to be passed by the court below in Complaint Case No. 7762 of 2022. 6. Questioning the said order, present application has been filed. 7. Learned counsel for the applicant has submitted that the order passed by the court below on 24.12.2024 is not in conformity with the statute. He submits that though the applicant was put to notice at pre-cognizance stage as per the recital contained in the order and the applicant did not respond the same, however, the operative portion of the order is contradictory itself, as on one hand, the direction no.1 summons the applicant under Section 138 of N.I. Act, whereas direction no.3 recites that since the notice has already been served upon the applicant at pre- cognizance stage, thus there is no need to again summon the applicant. Learned counsel for the applicant thus submits that both the directions cannot go together. He thus submits that summoning order be set aside and the matter be remitted back to the court below to pass a fresh order. 8. Learned A.G.A. on the other hand submits that once the cheque stood drawn by the applicant and it has been dishonoured, then the offences are made out, particularly, when presumption under Section 139 of the N.I. Act is always in favour of the holder of the cheque. However, he could not dispute the fact that there happens to be inconsistency and contradiction in the order itself. He submits that the order be set aside and matter be remitted back. 2 of 4 9. I have heard the submissions so made across the Bar and perused the record carefully. 10. For ready reference the relevant extract of the operative portion of the order dated 24.12.2024 is extracted hereinunder: - "1. अभियुक्त कमरूल हसन को धारा कमरूल हसन को धारा हसन को धारा को धारा धारा 138 NI Act क अन्तर्गत विचारण हेतु तलव किया जाता है। हतु तल हसन को धारा विकया जाता है। 2. पत्राल हसन को धारा ी दिनांक वि!न को धारा ांक 17.02.2025 को धारा धारा 274 BNSS 2023 क अन्तर्गत अभियुक्त कमरूल हसन को धारा बयान को धारा !ज करान को धारा हतु पश होवे। हो धारा । 3. क्योंविक अभियुक्त कमरूल हसन को धारा पर न्यायाल हसन को धारा य द्वारा प्रवि)त न को धारा ो धारा वि*स क+ पू म- ही दिनांक तामी दिनांक ल हसन को धारा हो धारा चुक+ है अतः अभियुक्त के अभियुक्त कमरूल हसन को धारा क विरु0 पुन को धारा ः अभियुक्त के समन को धारा जारी दिनांक करन को धारा क+ आश्यकता न को धारा हीं है। है। 4. क्योंविक अपराध जमान को धारा ती दिनांक है अतः अभियुक्त के इस मध्य अभियुक्त कमरूल हसन को धारा Rs. 25,000/- का पी दिनांक . बी दिनांक . तथा समान को धारा राभिश होवे। क+ !ो धारा जमान को धारा त न्यायाल हसन को धारा य म- !ाखि8ल हसन को धारा कर। 5. यह ी दिनांक स्प: विकया जाता है विक यवि! अभियुक्त कमरूल हसन को धारा उपरो धारा क्त कमरूल हसन को धारा विन को धारा यत तितभिथ पर उपस्थिस्थत न को धारा हीं है। हो धारा ता है तो धारा उसक विरु0 जमान को धारा ती दिनांक ारण्* BW मुखिल हसन को धारा र्ग Rs.25,000/- जारी दिनांक विकय जायर्ग।" 11. Apparently, with respect to dishonouring of two cheques, a statutory notice had been issued by O.P. No.2 to the applicant which is stated to have been served followed by the complaint and at a pre-cognizance stage, in terms of first proviso to Section 223 of the BNSS, the applicant was granted an opportunity of being heard before taking cognizance. This much is clear from the order. However, the fault lies in the operative portion of the order dated 24.12.2024, wherein the direction no.1 provides that the applicant is being summoned under Section 138 of the N.I. Act, however direction no.3 on the contrary holds that since at a pre- cognizance stage, the notice was served upon the applicant, thus summons are not being issued. 12. Since there is no clarity in the order dated 24.12.2024 passed by the court below, thus in the fitness of the matter and in the interest of justice, the order dated 24.12.2024 passed by the court of Additional Court, Saharanpur in Complaint Case No.7762 of 2024 (Mohd. Sharif Siddiqui 3 of 4 Vs. Qamrul Hasan), under Section 138 of N.I. Act is set aside. Matter stands remitted back to the court below to pass a fresh order strictly in accordance with law. For facilitation early disposal, the applicant shall submit a certified copy of the order before the court below by 30.05.2025. Order Date :- 17.5.2025 N.S.Rathour (Vikas Budhwar, J) 4 of 4 Digitally signed by :- NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad