Neutral Citation No. - 2025:AHC:138967 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 29764 of 2025 Applicant :- Smt. Seema Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Triloki Nath Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri T.N. Tiwari, 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 05.12.2024 passed by Additional Civil Judge, (S.D.), Court No. 4/Additional Chief Judicial Magistrațe, Varanasi, District-Varanasi in Complaint Case 46728 of 2024 (Vandana Shrivastava Vs. Seema Sharma), under section 138 Ν.Ι. Act, Police Station-Cant, District-Varanasi, pending in the court of Additional Civil Judge, (S.D.), Court No. 4/Additional Chief Judicial Magistrate, Varanasi, District-Varanasi. 3. Learned counsel for the applicant has submitted that a complaint was lodged by the O.P. No.2 on 20.06.2024 under Section 138 of N.I. Act against the applicant with an allegation that the O.P. No.2 runs the security guard services business and she came in connection with the applicant and the applicant had sought help for providing of the guard and he had also sent a proposal that the applicant possesses a plot which he seeks to transfer it and the O.P. No.2 on the basis of the assurance so extended by the applicant had tendered the amount of Rs.15,00,000/-, however, certain payments were made, but when the deal could not be materialized so a cheque bearing number "609921 of Rs.4,00,000/- dated 15.05.2024 came to be drawn by the applicant in favour of O.P. No.2, which on presentation in the bank came to be dishonoured on 18.05.2024 followed by a statutory demand notice issued and the complaint on 20.06.2024 under Section 138 of the N.I. Act. Thereafter, the applicant came to be summoned on 05.12.2024 under Section 138 of the N.I. Act. Learned counsel for the applicant has submitted that the complaint under section 138 N.I. Act is nothing but a grossest misuse of the process of law, being a malicious prosecution, particularly when with respect to the misutilization of the cheque, on the garb that certain amounts were to be paid to the applicant so the applicant in contact with O.P. No.2 requested for certain help and who took the blank signed cheque books, aadhar cards and other identity cards and bank documents. The blank cheques were misutilized, against which an FIR bearing number "0120/2025" dated 02.12.2022 under Sections 420, 452, 504, 506, 323, 354-Kha and 427 IPC came to be lodged, pursuant whereto post recording of the statements under Sections 161 and 164 of CrPC, a charge sheet came to be submitted and in retaliation and counterblast the present complaint has been lodged. Learned counsel for the applicant submits that no legally enforceable debt or liability stands attracted 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 would be there. 5. I have heard submissions so made across the Bar and perused the record carefully. 6. Apparently, in the present case as per the complaint lodged under Section 138 of the N.I. Act by the O.P. No.2 against the applicant, an allegation is that with respect to discharge of a liability, the applicant herein had drawn a cheque, which stood dishonoured followed by a statutory demand notice and a complaint. On a pointed query being raised to the learned counsel for the applicant as to whether there happens to be any jurisdictional infirmity or infraction of the provisions under Section 138 read with Section 142 of N.I. Act, the answer is in negative. The sole question which arises for consideration is whether the stand taken by the applicant that already the cheque stood misutilized and the blank signed cheques along with the bank statements and the identity cards were taken and the amount was filled in words and figures intentionally for getting it dishonoured is concerned, the same is at best a defence, consideration whereof will be required, when the trial commences. Moreover the presumption under Section 139 of the N.I. Act is always there in favour of the holder of the cheque. 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 issues, which are available and permissible under law and this Court has no reason to disbelieve that the court below shall consider the same in correct perspective. Order Date :- 14.8.2025 N.S.Rathour (Vikas Budhwar, J) Digitally signed by :- NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad