Neutral Citation No. - 2025:AHC:129494 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 17576 of 2025 Applicant :- Rakesh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kamal Kaushal Upadhyay Counsel for Opposite Party :- G.A.,Priyavrat Tripathi Hon'ble Vikas Budhwar,J. 1. Heard Sri Kamal Kaushal Upadhyay, learned counsel for the applicant and Sri Kripa Shankar, learned A.G.A. for the State as well as Shri Priyavrat Tripathi, counsel for the opposite party no. 2. 2. This application under Section 528 BNSS has been filed by the applicant to quash the entire proceeding of Case No. 45 of 2024, Sharda Devi Vs. Rakesh Kumar, under section 138 of N.I. Act, Police Station: Atrauli, District: Aligarh, pending before Additional Civil Judge (Sr. Division)/Additional Chief Judicial Magistrate, Atrauli, Aligarh as well as summoning order dated 05.06.2024 passed by Additional Civil Judge (Sr. Division)/Additional Chief Judicial Magistrate, Atrauli, Aligarh. 3. Learned counsel for the applicant has submitted that a complaint stood lodged by the opposite party no. 2 on 01.03.2024 with an allegation that the applicant herein with respect to discharge of a liability had drawn a cheque bearing No. 07135 which in favour of the husband of the applicant which came to be dishonoured on 16.12.2023, however, on 14.01.2024, the husband of the opposite party no. 2 expired thereafter a statutory demand notice came to be issued on 29.01.2024 which was served upon the applicant on 30.01.2024 and the complaint came to be preferred on 01.03.2024. The court of Additional Civil Judge (Sr. Division)/Additional Chief Judicial Magistrate, Atrauli, Aligarh proceeded to summon the applicant under Section 138 of the N.I. Act. 4. Questioning the said order, the applicant has been filed the present application. 5. Learned counsel for the applicant submits that post dishonour of cheque on 16.12.2023, statutory demand notice came to be issued on 29.01.2024 which was served upon the applicant on 30.01.2024 has recited in para-7 of the complaint but the complaint stood preferred on 01.03.2024 beyond 30 days which is not as per the limitation prescribed under Section 138 read with Section 142 of the Act. He submits that though in para-8, it has been recited that there has been certain delay in filing the complaint but notice ought to have been accorded to the accused to put forward his stand. He seeks to rely upon the Hon'ble Apex Court in the case of K.S. Joseph vs Philips Carbon Black Ltd.; 2016 (11) SCC 105. 6. Learned A.G.A. for the State as well as Shri Priyavrat Tripathi, counsel for the opposite party no. 2 submits that though the cheque was drawn by the applicant in favour of the husband of the applicant but the husband of the applicant expired on 14.01.2024 and thereafter statutory demand notice came to be issued on 29.01.2024 which was served upon the applicant on 30.01.2024 and thereafter there happens to be an order passed by the Additional Civil Judge (Sr. Division)/Additional Chief Judicial Magistrate, Atrauli, Aligarh dated 29.02.2024 whereby the opposite party no. 2 was declared legal heir of the deceased husband. He submits that delay is unintentionally beyond the control and comprehension and the Magistrate looking into the overall fact situation had condoned the delay. They submit that since the issue of delay has not been considered, the matter be remitted back to the court below. 7. I have heard learned counsel for the parties and gone through the records carefully. 8. Apparently, with respect to discharge of a liability, a cheque stood drawn by the applicant in favour of the husband of the opposite party no. 2 which was dishonoured on 16.12.2023 and the husband of the opposite party no. 2 expired on 14.01.2024, a statutory demand notice came to be issued on 29.01.2024 which was served upon the applicant on 30.01.2024 and the complaint under Section 138 of the Act came to be preferred on 01.03.2024. Importantly, though it might be one of the grounds which can be said to be available with the opposite party no. 2 for condonation of delay on the premise that her husband expired and it took certain time to become the legal heir but it is a defence and before condoning and thus opportunity to put forward/ stand is to be accorded to the accused. The issue putting to notice the accused before condoning the delay, stands crystalized in K.S. Joseph (supra). 9. Since it is forthcoming from the order in question that any delay condonation application was preferred or accused was put to notice, thus, the summoning order dated 05.06.2024 passed by the Additional Civil Judge (Sr. Division)/Additional Chief Judicial Magistrate, Atrauli, Aligarh cannot be sustained. 10. In view of the order dated order dated 05.06.2024 passed by the Additional Civil Judge (Sr. Division)/Additional Chief Judicial Magistrate, Atrauli, Aligarh is set aside. 11. The matter stands remitted back to pass fresh order strictly in accordance with law. 12. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 21.08.2025 and the court below shall proceed to decide the said proceeding with most expedition. 13. Needless to point out that the Court has not adjudicated upon the merits of the case. 14. Accordingly, the application stands disposed of. Order Date :- 1.8.2025 A. Prajapati Digitally signed by :- ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad