Neutral Citation No. - 2025:AHC:111001 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 24270 of 2025 Applicant :- Nanhku Ram Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajeet Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Ajeet Kumar Srivastava learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA for the State. 2. This is an application filed under Section 528 of the B.N.S.S. for quashing the summoning order on 07.01.2023 as well as entire criminal proceeding of Case No. 4252 of 2021 (Shailendra Vs. Nankhu Ram), under Section 138 N.I.Act, pending in the court of Additional Chief Judicial Magistrate-Ist, Court no.12, Jaunpur related Kotwali, District Jaunpur. 3. The case of the applicant is that a complaint was lodged by the opposite party no.2 on 31.3.2021 with an allegation that with respect to discharge of a liability the applicant had drawn a cheque bearing no.294316 of Rs.13 lakhs which on presentation in the bank came to be dishonoured on 25.2.2021, a statutory demand notice was issued on 5.3.2021 followed by the complaint thereafter the applicant came to be summoned on 7.1.2023, under Section 138 of the N.I. Act. 4. Learned counsel for the applicant has submitted that the applicant happens to be a contractor, who was interested with the work to execute certain constructions. He has further submitted that with respect to certain friction so occasioned between the parties, the matter was taken up before the Station House Officer, Sarain Khwaja, Jaunpur wherein a settlement took place between the parties. Attention has been drawn towards annexure-7 at page 61 of the paper book. 5. Learned counsel for the applicant submits that in the settlement it was agreed that the applicant would give a cheque as a security. However, according to him the applicant has executed the entire work, however the cheuqe which was with the opposite party no.2 as security was requested to be returned but rather to the contrary the same was presented and got dishonoured. 6. Learned counsel for the applicant while referring to the judgement in Dashrathbhai Trikambhai Patel vs Hitesh Mahendrabhai Patel & another 2022 Law Suit (SC) 1202 submits that once an agreement entered between the parties and then any action taken prior to it would extinguish and further the cheques by way of security do not answer the description of debt and liability under Section 138 of the N.I. Act. 7. Learned AGA on the other hand submits that whatever might be once the cheques stood drawn and with the same was dishonoured the presumption under Section 139 of the N.I. Act would be there and the question whether the cheque was by way of security or not is also a question of trial. 8. I have the submissions so made across the bar and perused the record carefully. Apparently, a cheque of an amount of Rs.13 lakhs stood drawn which was dishonoured followed by a statutory demand notice and a complaint. The question as to whether the cheque was by way of security or not is a question of trial which cannot be gone into at this stage when the summoning order has been challenged. 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." 9. In Sunil Todi and others Vs. State of Gujarat, (2022) 16 SCC 762 the Hon'ble Apex Court has reiterated the aforesaid law. 10. Nonetheless the reliance so placed upon the alleged settlement so entered into between the parties cannot be gone into as whatever would be its effects and ramifications and in fact are the questions which are to be seen at the stage when the trial commences when a decision is to be taken whether the accused is to be convicted or acquitted. What would be relevant at the stage of summoning would be the drawing of the cheque and the dishonouring of the same. In absence of pointing out of any infirmity with regard to infraction of provisions of Sections 138 and 142 of the N.I. Act, this Court is not required to delve into defences as the stage of consideration has not arisen yet. 11. Accordingly, no case is made out for interference, the application stands disposed of granting liberty to the applicant to take all legal and factual grounds which are available under law while contesting the trial and this Court has no reasons to disbelieve that the same shall be considered with most expedition in correct perspective. Order Date :- 11.7.2025 piyush Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad