Neutral Citation No. - 2025:AHC:141831 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 30369 of 2025 Applicant :- Ram Nivas Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anuj Kumar Gupta Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Anuj Kumar Gupta, learned counsel for the applicant as well as Sri J.B. Gupta, learned A.G.A. for the State. 2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the entire proceeding of Complaint Case No.1043 of 2025 (Chandrakesh Vs. Ram Nivas) filed Under Section 138 N.I. Act, Police Station Sambhal, District Sambhal and summoning order dated 17.07.2025 passed by Civil Judge (Junior Division)/Judicial Magistrate out line Court Sambhal, pending in the court of Civil Judge (Junior Division)/Judicial magistrate out line Court Sambhal. 3. The case of the applicant is that a complaint stood lodged by the O.P. No.2 on 20.03.2025 under Section 138 of N.I. Act against the applicant with an allegation that with respect to an agreement so entered between the parties, certain amount was advanced and with respect to discharge of a liability, the applicant herein had drawn a cheque of an amount Rs.8,40,000/- bearing number "897985" dated 25.02.2025, which on presentation in the bank on 03.03.2025, came to be dishonoured followed by a statutory demand notice dated 06.03.2025 and a complaint under Section 138 of N.I. Act, whereupon, the applicant came to be summoned on 17.07.2025. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason that the applicant had at no point of time drawn the cheque and further though reference has been made of the agreement, but there is no date or details of the agreement and no such agreement stood entered between the parties and further in connection to the death of the daughter of the applicant, postmortem was being conducted and an FIR was also lodged against the inlaws, thus it is hardly possible and rather impossible that the cheque could have been drawn by the applicant. He further submits that in view of the provisions of Section 269-SS of the Income Tax Act, any payment in cash above Rs.20000/- is clearly an offence, then there is no legal enforceable debt or liability so as to invoke provisions of Section 138 of 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 would be there. 5. I have heard submissions so made across the Bar and perused the record carefully. 6. Apparently, as per the allegations made in the complaint dated 20.03.2025 lodged by O.P. No.2, the cheque is stated to have been drawn by the applicant in favour of O.P. No.2 of an amount of Rs.8,40,000/-, which on presentation in the bank came to be dishonoured followed by statutory demand notice. The question whether the cheque had been actually drawn or not is a question, which is subject matter of trial. As per the argument raised by the learned counsel for the applicant that it was a signed cheque and was kept in the purse of the daughter of the applicant, which was misutilized by O.P. No.2 is concerned, the same is also subject matter of trail. Furthermore, presumption under Section 139 of the N.I. Act is always there. In so far as the argument so sought to be raised with respect to the fact that the cash payment of an amount over and above Rs.20,000/- could not have been made and it is in clear violation of Section 269-SS of the Income Tax Act, suffice it to say that it is for the revenue authority to take a call and the summoning order cannot be said to be bad in the eyes of law, as held in Bombay High Court in Criminal Appeal No.795 of 2018, Prakash madhukarrao Desai Vs. Dattatraya Sheshrao Desai, wherein in paragraph-16, following was observed:- "18. In view of the aforesaid discussion, it is held that a transaction not reflected in the books of accounts and/or Income Tax returns of the holder of the cheque in due course can be permitted to be enforced by instituting proceedings under Section 138 of the Act of 1881 in view of the presumption under Section 139 of the Act of 1881 that such cheque was issued by the drawer for the discharge of any debt or other liability, execution of the cheque being admitted. Violation of Sections 269-SS and/or Section 271-AAD of the Act of 1961 would not render the transaction unenforceable under Section 138 of the Act of 1881. The decisions in Krishna P. Morajkar, Bipin Mathurdas Thakkar and Pushpa Sanchalal Kothari (supra) lay down the correct position and are thus affirmed. The decision in Sanjay Mishra (supra) with utmost respect stands overruled." 7. 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 :- 20.8.2025 N.S.Rathour (Vikas Budhwar, J) Digitally signed by :- NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad