Neutral Citation No. - 2025:AHC:136079 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 23548 of 2025 Applicant :- Rajapal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Hare Krishna Tripathi Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri H.K. Tripathi, learned counsel for the applicant as well as Sri Moti Lal, learned A.G.A. for the State. 2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 06.05.2025 passed by learned Additional Civil Judge (J.D.), Court No. 1/ Judicial Magistrate, Jhansi as well as entire proceedings of Complaint Case No. 7334 of 2024 (Om Shri Sai Automobile through Proprietor Anand Kumar Saxena Vs. Rajapal) under Section 138 N.I. Act, Police Station-Kotwali, District-Jhansi.. 3. The case of the applicant is that a complaint was lodged by the O.P. No.2 on 02.04.2024 under Section 138 of N.I. Act against the applicant with an allegation that with respect to discharge of a liability, the applicant had drawn a cheque bearing number "639561" of an amount Rs.5,90,000/-, which on presentation in the bank on 20.12.2023 came to be dishonoured on 21.12.2023 with the remarks 'advice not received' communication whereof was received on 29.12.2023. Thereafter, the said cheque was again presented in the bank on 12.01.2024, which came to be dishonoured on 08.02.2024, communication whereof was made on 12.02.2024, followed by a statutory demand notice issued on 28.02.2024, which came to be received on 02.03.2024 and on 02.04.2024, the complaint under Section 138 of N.I. Act came to be filed and on 06.05.2025, applicant came to be summoned under Section 138 of the N.I. Act. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for a simple reason that there happens to be a business relationship between the applicant and O.P. No.2 with respect to a commission, which was being paid to the applicant for selling of E-rickshaw. Learned counsel for the applicant submits that the applicant had made all the payments, however, the said cheque was a security cheque as he seeks to rely upon Annexure-8, relevant part at page- 54 of the paper-book being an affidavit. Submission is that security cheque does not answer the description of debt or liability so as to invoke the provisions of Section 138 of the N.I. Act. 4. Learned A.G.A. on the other hand submits that once the cheque stood drawn and it has been dishonoured, then the presumption under Section 139 of the N.I. Act is there. 5. I have heard submissions so made across the Bar and perused the record carefully. 6. Apparently, the allegation as per the complaint is with regard to drawing of a cheque, which stood drawn, came to be dishonoured on two occasions followed by a statutory demand notice. On a pointed query being raised from learned counsel for the applicant as to whether there happens to be any jurisdictional infirmity, the answer is in negative. The objection of learned counsel for the applicant is that the said cheque does not answer the description of debt or liability. In the opinion of the Court, the said aspect of the matter is triable in nature and the same cannot be gone into at the summoning stage. Moreover the presumption under Section 139 of the N.I. Act is always there in favour of the holder of the cheque. 7. As regards the second submission of learned counsel for the applicant that the said cheque was a security cheque is concerned, the same is a subject matter of trial. In M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another, (2022) 18 SCC 631, the Hon'ble Apex Court had the occasion to consider the issue as to whether the determination can be done at the stage of summoning when the allegation that the cheque was a security cheque is concerned. The Hon'ble Apex Court 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." 9. The aforesaid law has been followed subsequently in Sunil Todi and others vs. State of Gujarat, (2022) 16 SCC 762. 10. As regards the contention that the applicant has made the entire payment and nothing was due is concerned, the same is at best a defence, consideration whereof would be necessitated in the trial. 11. Accordingly, interference is declined. The application is disposed of leaving it open to the applicant to contest the trial before the court below while taking all the legal and factual grounds and this Court has no reason to disbelieve that the court below shall consider the same in correct perspective. Order Date :- 12.8.2025 N.S.Rathour (Vikas Budhwar, J) Digitally signed by :- NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad