Neutral Citation No. - 2025:AHC:88840 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 18719 of 2025 Applicant :- Anchal Pandey Opposite Party :- State of U.P. and Another Counsel for Applicant :- Manoj Kumar Tiwari,Rajesh Chandra Dwivedi Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri V.K. Ojha (A/V-0152/2012) holding brief of Sri Manoj Kumar Tiwari, learned counsel for the applicant as well as Sri Vikas Sharma, learned State Law Officer for the State/opposite party no.1. 2. This application under Section 528 of the BNSS has been filed by the applicant to quash the entire proceeding of the Complaint Case no.168 of 2019 (Shiv Poojan Pandey versus Anchal Pandey and Another) under section 138 of N.I.Act, Police Station Alinagar, District-Chandauli pending before the court of Judicial Magistrate Chandauli as well as the summoning order dated 11.7.2019. 3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no.2 on 18.2.2019 under Section 138 of the N.I. Act with an allegation that with respect to discharge of the liability two cheques bearing nos.549202 dated 20.9.2018 and 549208 dated 23.9.2018 for an amount of Rs.5 lakh each was drawn by the applicant in favour of the opposite party no.2 which on presentation in the bank on 15.12.2018 was dishonoured thereafter a statutory notice was issued on 9.1.2019 followed by a complaint on 18.2.2019 and thereafter the applicant has been summoned on 11.7.2019 under Section 138 of the N.I. Act. He has further submitted that the summoning order it self cannot be sustained for the simple reason that in an application under Section 239/245 of the Cr.P.C. preferred by the applicant on 5.3.2025 in para 5 details have been given with respect to the payments so made and while inviting attention towards the payments so made 5 lakh each on 11.10.2018 and 5.11.2018 it is submitted that the entire liability stood paid of and the amounts so reflected in the cheque would not be the legally and the enforceable debt as the applicant would be entitled to the benefit of Section 56 of the N.I. Act. He has also submitted that the cheques in question were kept as a security with the opposite party no.2, however, the same was misutilized and was intentionally presented in the bank and got dishonoured. He has next submitted that the said application under Section 239/245 of the Cr.P.C. has been rejected by the court below by virtue of the order dated 16.4.2025 4. Sri Vikas Sharma, learned State Law Officer on the other hand submits that the summoning order is dated 11.7.2019 and in a complaint case that too of Section 138 of the N.I. Act, the application under Section 239/245 of the Cr.P.C. are not maintainable. He further submits that once the applicant himself as per his own showing has obtained bail and is already contesting the matter then it may not be appropriate for this Court to interfere at this stage. 5. I have heard the submissions so made across the bar and perused the record carefully. Apparently, two cheques for an amount of Rs. 5 lakhs one dated 20.9.2018 and second dated 23.9.2018 came to be drawn by the applicant which was dishonoured followed by a statutory notice as well as the complaint. The arguments so sought to be advanced by the learned counsel for the applicant that the said cheques were kept with the opposite party no.2 as security which was misutilized is concerned the said aspect of the matter is not required to be gone into at the stage of summoning as the issue is no more res integra as the Hon'ble Apex Court in the case of M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another (2022) 18 SCC 631 has observed as under:- "In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques." 6. In Sunil Todi and others Vs. State of Gujarat, (2022) 16 SCC 762 the Hon'ble Apex Court has reiterated the aforesaid law. 7. As regards the other submission of the learned counsel for the applicant that once the entire payments stood made by the applicant then there was no legal enforceable debt is concerned the same in the facts and the circumstances of the case is a question which is to be thrashed out in the trial. Moreover, the Court is also mindful of the fact that the summoning order is dated 11.7.2019 and the present application has been filed approximately after the period of six years in the year 2025. 8. Accordingly, interference at this stage is declined. However it is open for the applicant looking all legal and factual grounds which are available and permissible under law and in case such grounds are taken then the Court has no reason to disbelieve that the same shall be decided strictly in accordance with law. 9. In view of above the application stands disposed of. Order Date :- 26.5.2025 piyush Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad