Neutral Citation No. - 2025:AHC:106943 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 22034 of 2025 Applicant :- Sarvshree Raja Motors Opposite Party :- State of U.P. and Another Counsel for Applicant :- R.K. Mishra Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri R.K. Mishra learned counsel for the applicant and Sri Moti Lal, learned AGA for the State. 2. This application under Section 528 BNSS has been filed by the applicant to quash the entire proceeding Complaint Case No. 380/2022, (Computerized Registration No. 9244/2022, Krishna Automobiles Vs. Sarvshree Raja Motors U/s 138 Negotiable Instrument Act, Police Station Kotwali Nagar, Bulandshahr pending before learned Additional Civil Judge (Junior Division)/ Judicial Magistrate, Court No.1, Bulandshahr as well as quash the summoning order dated 18.8.2023. 3. Learned counsel for the applicant submits that a complaint stood lodged by the opposite party no.2 on 7.6.2022 under Section 138 of the N.I. Act with an allegation that with respect to business relationship and for discharge of liability a cheque stood drawn by the applicant of an amount of Rs.10 lakhs bearing no.910609 dated 30.12.2021 which on presentation in the bank on 23.5.2022 stood dishonoured on 28.3.2022 being funds insufficient and on 2.5.2022 statutory demand notice was issued followed by a complaint under Section 138 of the N.I. Act on 7.6.2022 and the applicant came to be summoned on 18.8.2023 under Section 138 of the N.I. Act. He has further submitted that the summoning order cannot be sustained for more than one reason, firstly, there has been no verification of the complaint, secondly the cheques which were with the opposite party was security, thirdly as per the business statement as well as the statement the said amount was not due, fourthly the statutory notice was issued post lapsing of 30 days from the date of the dishonour of the cheque i.e.28.3.2022. 4. Learned AGA on the other hand submits that once the cheque stood drawn and it was dishonoured then the presumption under Section 139 of the N.I. Act would be in favour of the holder of the cheque. 5. I have heard the submissions so made across the bar and perused the record carefully. Apparently, a cheque stood drawn which on presentation in the bank was dishonoured. The presumption under Section 139 of the N.I. Act would be there. 6. As regards the contention of the learned counsel for the applicant that the cheque was dishonoured on 28.3.2022 and the statutory demand notice was issued on 2.5.2022 beyond 30 days and thus the complaint was not maintainable and is liable to fall the same is not convincible for the simple reason that in para 7 of the complaint it has also been asserted that information regarding dishonour of a cheque on 28.3.2022 was made available to the opposite party no.2 on 5.4.2022 thus the statutory demand notice was issued within the statutory period. Further contention is that the complaint was not verified the same is also not liable to be accepted at this stage particularly when statements under Section 200 Cr.P.C. were also recorded and whatever discrepancy is there if any is a question which is a subject matter of trial. 7. With respect to the contention raised by the learned counsel for the applicant that the cheque was by way of security thus no legal enforceable debt or liability stood accrued is concerned, the same is a subject matter of trial 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." 8. In Sunil Todi and others Vs. State of Gujarat (2022) 16 SCC 762 the Hon'ble Apex Court has reiterated the aforesaid law. 9. Lastly so far as the contention so sought to be raised that the applicant is not liable to pay the said amount as per the documents available with him is concerned the same at best is a matter of trial consideration whereof would required when the trial commences and not at the stage of summoning. 10. Accordingly, the interference is declined. The application stands disposed of . Order Date :- 8.7.2025 piyush Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad