Neutral Citation No. - 2025:AHC:84866 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 17728 of 2025 Applicant :- Sheltor Care India Pvt. Ltd. Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sandeep Mishra Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Sandeep Mishra, learned counsel for the applicant as well as Sri Vikas Sharma, learned State Law Officer for the State. 2. In view of the order which is being proposed to be passed, notice is not being issued to the opposite party no. 2. 3. This application u/s 528 of BNSS has been preferred to quash/set-aside the entire proceeding, including the impugned summoning order dated 20.08.2024 passed by learned A.C.J. (J.D.)-Ist, Kanpur Nagar, in Complaint Case No. 2723 of 2024 (Anand Saxena Versus Sheltor Care India Pvt. Ltd.), Under Section 138 N.I. Act. 1881, Police Station Kakadev, District Kanpur Nagar, pending in the court of A.C.J. (J.D.)-1", Kanpur Nagar. 4. The case of the applicant is that a complaint was lodged by the opposite party no. 2 on 10.01.2024 under Section 138 of the NI Act that there was certain amount of rent due which was to be paid by the applicant to the opposite party no. 2 and in this regard, he had drawn two cheques of 40,000/- each bearing no. 097036 dated 10.12.2023 and 097037 dated 10.12.2023 which was presented in the bank on 18.12.2023 and dishonored on 20.12.2023. Thereafter, in accordance with Section 202, an affidavit which is at page 19 of the paper book, the applicant had been summoned on 20.08.2024 in Complaint Case No. 2723 of 2024 by the Court of Additional Civil Judge (J.D.), Kanpur Nagar. 5. Questioning the summoning order, the present application has been filed. 6. Learned counsel for the applicant submitted that the summoning order cannot be sustained for a single moment for more than one reason. Firstly, though the subject cheques bearing no. 097036 and 097037 both dated 10.12.2023 for 40,000/- each are stated to have been dishonored on 20.12.2023 but para 5 of the complaint only recites that the statutory notice was issued on 22.08.2023. Similarly, in the statement under Section 202, the same position is reflected in para 3 and 7. Secondly, the notice dated 22.08.2023 which is Annexed as Annexure-4 at page 28 of the paper book relevant extract whereof at page 29, para 6 recites about dishonoring of a cheque bearing no. 09370 of Rs. 40,000/- which even in fact is not the subject cheque of the complaint and thirdly, in the summoning order dated 20.08.2024 this much has been decided that the cheque bearing no. 097036 dated 10.11.2023 has been dishonored whereas in the complaint there are two cheques another being 09737 which is dated 10.12.2023. According to him, there has been virtually non-adherence to the provisions contained under Section 138 read with Section 142 of the NI Act. 7. Prayer is for setting aside the summoning order and remitting the matter back to the court below. 8. Learned State Law Officer, on the other hand, submits that though post dishonor of the cheque, a statutory demand notice has been issued but here it is not forthcoming from the averments in the complaint, he submits that even the summoning is silent on the side aspect. According to him, the summoning order does not test the touchstone of legal sanctity and, thus, the same be set aside and the matter be remitted back to the court below to pass a fresh order. 9. I have heard the submission so made across the bar and perused the record carefully. 10. Apparently, the complaint alleged dishonoring of two cheques bearing no. 097036 and 097037 dated 10.12.2023 of 40,000/- each on 20.12.2023, this much is also reflected in the statement under Section 202 of the Cr.P.C., however, the Court finds that there is no recital or description given to any statutory demand notice issued post dishonoring of the cheque as what has been referred to is the statutory legal notice dated 22.08.2023 which is anterior to the date of dishonoring. This obviously does not qualify the provisions of Sections 138 and 142 of the NI Act. Apart from the same, the Court finds that in the summoning order there is a reference to cheque no. 097036 dated 10.12.2023 and not the cheque no. 097037 dated 10.12.2023. Nonetheless the summoning does not even recite the date and the factum of service of the statutory notice. The summoning order is cryptic and has been passed without due application of mind. 11. Accordingly, looking into the overall fact situation, the summoning order dated 20.08.2024 is set aside and matter is remitted back to the court below to pass a fresh order. For facilitation, the applicant shall submit a certified copy of the order by 30.05.2025. 12. With the above observations, the application stands disposed of. Order Date :- 19.5.2025 Rajesh Digitally signed by :- RAJESH KUMAR High Court of Judicature at Allahabad