Neutral Citation No. - 2025:AHC:143543 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 30602 of 2025 Applicant :- Sri Arun Sondhi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Himanshu Mishra,Shikhar Neelkanth Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Shikhar Neelkanth, learned counsel for the applicant and Sri Moti Lal, learned A.G.A. for the State. 2. This application under Section 528 BNSS has been filed by the applicant to quash the Complaint Case No. 462 of 2024 (Neelam Rijhawan vs Arun Sondhi) under Section 138 of Negotiable Instruments Act, 1881 P.S- Hariparvat, District-Agra, pending in the court of Additional Civil Judge/Junior Division, Court No.6 Agra and also to quash the impugned summoning order dated 21.08.2024 passed by the Additional Chief Judicial Magistrate, Court No.5, Agra. 3.Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no. 2 under Section 138 of the N.I. Act on 03.01.2024 with an allegation that the opposite party no. 2 had tendered an amount of Rs. 25,00,000/- to the applicant herein and when the applicant with respect to discharge of a liability had drawn a cheque bearing no. 652020 dated 30.04.2023 of an amount of Rs. 25,00,000/- which on presentation in the bank came to be dishonoured on 25.07.2023 with the remark 'funds insufficient' thereafter another cheque came to be issued bearing no. 469793 dated 30.09.2023 for an amount of Rs. 25,00,000/- which was dishonoured on 30.10.2023 and payments were stopped by the drawer, followed by a statutory demand notice dated 23.11.2023 and the complaint on 03.01.2024. The applicant came to be summoned on 21.08.2024. 4. Learned counsel for the applicant submits that the summoning order cannot be sustained for the simple reason that though in para-4 it has been asserted that an amount of Rs. 10 lakhs was tendered in March, 2019 followed by Rs. 10 lakhs in July, 2020 and Rs. 5 lakhs in April, 2021 and there is no mode and the date of said payments being made. He submits that as per the provisions contained under Section 269SS of Income Tax Act, 1961, any payment so made in cash beyond Rs. 20,000/- would be an offence which invoke the provision of the I.T. Act. Submission is that even the applicant had also issued a notice on 30.10.2023 addressed the opposite party no. 2 for return of the cheque which according to the learned counsel for the applicant was prone to be misutilized and rather it was misutilized. He seeks to rely upon the judgment in the case of Rekha Sharad Ushir v. Saptashrungi Mahila Nagari Sahkari Patsansta Ltd. 2025 SCC Online SC 641 so as to contend that in case the complainant does not come with a clean hand then it dis-entitles the grant of a relief. Further reliance has been placed upon in the case of Ashok Kumar Gupta v. State of U.P. & Anr; Criminal Appeal No. 1774 of 2011, decided on 17.06.2016. 5. Learned AGA on the other hand submits that whatever arguments, are being raised, are subject matter of trial and presumption under Section 139 of the N.I. Act would be there. 6. I have heard learned counsel for the parties and gone through the records. 7. The sole question which arises for determination in the present proceedings is to the extent of judicial intervention. Apparently, with respect to dishonour of a cheque dated 30.09.2023 bearing no. 469793 on 30.10.2023, a statutory demand notice came to be issued on 23.11.2023 followed by a complaint on 03.01.2024. As regards the submission of the learned counsel for the applicant that there has been no recital or disclosure about the mode and the manner of making the huge payment of Rs. 25,00,000/- is concerned and the same itself erodes the case of the complaint and it is an offence under Section 269SS of Income Tax Act, 1961 is concerned, the said question is not to be entertained at the stage of summoning , particularly, it is for the revenue authorities to take a call upon the same as held in Bombay High Court in Criminal Appeal No.795 of 2018, Prakash madhukarrao Desai Vs. Dattatraya Sheshrao Desai, and moreover, it would not make the summoning order fatal at this stage, wherein in paragraph-18, 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." 8. As regards the submission of the learned counsel for the applicant that there had been no disclosure about the notice dated 30.10.2023 for return of the cheque and the same is a vital concealment which goes to the root of the matter is concerned, the same is at best is a matter of defence, consideration whereof is to be raised during the trial. Accordingly, The presumption under Section 139 of the N.I. Act would be there. 9. Accordingly, the interference is declined, the application stands disposed of. 10. Leaving it open to the applicant to raise legal and factual grounds while contesting the trial. Order Date :- 21.8.2025 A. Prajapati Digitally signed by :- ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad