HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 29847 of 2025 Court No. - 75 HON'BLE VIKAS BUDHWAR, J. 1. A Vakalatnama has been filed by Sri Rahul Kumar Sharma, Advocate on behalf of the opposite party no. 2 today in the Court. It is taken on record. 2. Heard, Shri Ashwani Kumar Mishra (AOR No.A/A0829/2021), learned counsel for the applicant, Sri S.P. Singh, learned State Law Officer for the State and Sri Rahul Kumar Sharma learned counsel for the opposite party no. 2. 3. A statement has been made by Sri Rahul Kumar Sharma learned counsel for the opposite party no. 2 that he has complete instructions in the matter and he does not press to file any response and the application be decided on the basis of the documents available on record. With the consent of the parties that the application is being decided at the fresh stage. 4. This is an application under Section 528 BNSS to quash the entire proceeding entire Proceeding of Complaint Case No. 849 of 2023 (Ankur Dixit Vs. Krishna Kumar Dixit and others), Under Section 138 N.I. Act., Police Station Kotwali Hathras, District-Hathras, pending in the court of Civil Judge (Senior Division)/F.T.C., Hathras and summoning order dated 21.02.2024. 5. The case of the applicant is that a complaint was lodged on 6.6.2023 against the applicant and the company, Dream Town Developers' Pvt. Ltd. under Section 138 of the N.I. Act with an allegation that with respect to discharge of the liability, a cheque came to be drawn by the applicant on behalf of the company, Dream Town Developers' Pvt. Ltd. bearing No. Versus Counsel for Applicant(s) : Sanjay Kumar Dubey Counsel for Opposite Party(s) : Rahul Kumar Sharma, G.A. Krishna Kumar Dixit .....Applicant(s) State of U.P. and Another .....Opposite Party(s) 000477 and 000478 of Rs. 1,50,000 each, which for presentation in the bank came to be dishonored on 1.5.2023 and subsequently on 4.5.2023, followed by a statutory demand notice dated 18.5.2023 and a complaint on 6.6.2023 and Dream Town Developers' Pvt. Ltd. through its Proprietor Krishna Kumar Dixit has been summoned under Section 138 of the N.I. Act. 6. Questioning the summoning order the application has been preferred. 7. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason that the complaint was initially filed by the opposite party, No. 1 against the applicant, being Krishn Kumar Dixit and thereafter, post-amendment, Dream Town Developers' Pvt. Ltd. Hathras, Proprietor, Krishn Kumar Dixit was made a party and the applicant has been summoned in the capacity of Dream Town Developers' Pvt. Ltd. Hathras through Proprietor, Krishn Kumar Dixit. He has further submitted that the summoning order suffers from inherent defect, firstly, on the premise that once there is a company, then there cannot be a proprietor of a company and secondly, no statutory demand notice was issued to the Company. He has also submitted that though in view of the judgment of the Hon'ble Apex Court in the case of Aneeta Hada Vs. M/s. Godfather Travels & Tours Pvt. Ltd. reported in 2012 0 AIR SC 2795, the company is to be arraigned as an accused but one of the prerequisite requirement would be issuance of a statutory demand notice to the company itself and according to him, the same has not been done and thus, the complaint may not be maintainable. 8. Sri Rahul Kumar Sharma, who appears for the opposite party No. 2, submits that the applicant happens to be a signatory of the cheque, though the cheque stood issued for the Dream Town Developers Pvt. Ltd. Hathras, however, according to him, the summoning order does not advert to the crucial aspect whether any statutory demand notice was issued to the company or not and according to him, the issue relatable to the aspect of a existence of a proprietor in a private limited company is a question which has also not been taken into note by the court below, according to him, the order be set aside, matter be remitted back to the court below to pass a fresh order. 9. Learned State Law Officer has adopted the submissions of the counsel for the opposite party no.2. NA528 No. 29847 of 2025 2 10. Having heard the submissions so made across the bar and after perusal the record, in the opinion of the court, though arraigning of the company as an accused is imperative, once the cheques stood drawn on behalf of the company, however, since there is no recital regarding the compliance of Section 138 read with Section 142 of the N.I. Act with relation to issuance of a statutory demand notice and the aspect related to summoning the applicant as a proprietor of the company and since the aforesaid aspects are lacking, thus the summoning order cannot be sustained. Accordingly, the application is being decided in the following terms:- (a) The order dated 21.02.2024 passed by the Civil Judge (Senior Division)/F.T.C., Hathras in 849 of 2023 (Ankur Dixit Vs. Krishna Kumar Dixit and others), Under Section 138 N.I. Act., Police Station Kotwali Hathras, District-Hathras is set aside, (b) the matter stands remitted back to the court below to pass a fresh order strictly in accordance with law, (c) for faciliation and early disposal the parties to submit certified copy of the order passed today by 23.9.2025. 10. With the aforesaid observation, this application stands disposed of. September 12, 2025 piyush NA528 No. 29847 of 2025 3 (Vikas Budhwar,J.) Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad