Neutral Citation No. - 2025:AHC:116204 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 22302 of 2025 Applicant :- Raghvendra Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajay Kr. Srivastava,Sanjay Kr. Srivastava Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Head Sri Sanjay Kumar Srivastava, learned counsel for the applicant and Sri S.K. Singh, learned AGA for the State. 2. This is an application filed U/s 528 BNSS for quashing the impugned proceeding of complaint case no. 5094 of 2022 (Samar Jeet Singh vs. Raghvendra Singh) U/s 138 of N.I. Act, P.S. Gajner, District Kanpur Dehat pending in the court of Judicial Magistrate, court no.1 Kanpur Dehat. 3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no.2 on 16.05.2022 against the applicant U/s 138 of N.I. Act with an allegation that with respect to agreement to sale so executed between the parties. Total amount which was liable to be paid was four lacs in which Rs.3.50 lac was paid through cheque and Rs. 50,000/- was paid through cash. Since the agreement to sale stood terminated by virtue of a cancellation deed, a specific recital was contained that the entire payment has been made. However, the allegations is that the applicant in view of the cancellation of the agreement to sale had drawn two cheques bearing no. 080885 for Rs. 2 lac on 12.11.2021 and 201314 of Rs. 2 lacs on 12.11.2021 which on presentation in the bank stood dishonoured on 26.11.2021 and on the assurance of the applicant, the opposite party no.2 again presented the cheque on 02.02.2022 which was dishonoured on 05.04.2022 with a remark that the cheque were old and thereafter on 18.04.2022 a registered demand notice was issued followed by the complainant U/s 138 of N.I. Act on 16.05.2022 and the applicant came to be summoned on 01.09.2022 U/s 138 of N.I> Act. 4. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for simple reason that as per the agreement to sale, the total sale consideration was Rs. 4 lacs and post cancellation of the sale deed, there was a recital that the applicant had paid the entire amount and nothing remains to be paid then there was no question of drawing of cheque of Rs. 4 lac in total as there was no legal debt or liability so as to answer the description of Section 138 of N.I. Act. Further submission is that when lastly the cheque stood dishonoured then the cheque became an old cheque then no offence U/s 138 of N.I. is made out. 5. Learned AGA on the other hand submits that whatever might be the summoning order is dated 01.09.2022 and as per the averments contained in para-26, the applicant herein had obtained bail on 16.11.2023 and the statement U/s 251 Cr.P.C. was recorded and evidence U/s 244 of Cr.P.C. was recorded in the form of complainant's statement on 05.12.2024 and, further the matter is running for cross examination in evidence U/s 244 Cr.P.C. He submits that it is for the applicant to raise all legal and factual issues before the court below while contesting the trial. At this juncture, learned counsel for the applicant submits that applicant shall be raising all the legal and factual issues before the court below and the court below be directed to consider the said aspect in the correct perspective. 6. Having heard the submissions so made across the bar and perused the record carefully. 7. The Court is of the opinion that once the applicant himself is contesting the matter himself before the court below then obviously he can raise all legal and factual grounds and the court has no reason to disbelieve that the same shall be considered in correct perspective 8. With the said observation, the present application is disposed of. Order Date :- 16.7.2025 C. MANI (Vikas Budhwar,J.) Digitally signed by :- CHANDRAMANI VERMA High Court of Judicature at Allahabad