HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 30593 of 2025 Court No. - 75 HON'BLE VIKAS BUDHWAR, J. 1. Vakalatnama has been filed by Mr. S.P. Pandey and Mr. Sanjay Mishra, Advocates on behalf of opposite party no.2, which is taken on record. 2. Heard Mr. Uma Nath Pandey, learned counsel for the applicant, learned A.G.A. for the State and Mr. S.P. Pandey, learned counsel for the opposite party no.2. 3. A joint statement has been made by the parties that they do not propose to file any further affidavit and the application be decided at this stage on the basis of the documents available on records. 4. With the consent of the parties, the application is being decided at the fresh stage. 5. This is an application under Section 528 of BNS preferred by the applicant to quash the summoning order dated 21.04.2025 as well as entire proceedings of Complaint Case No.-2489 of 2024 (Naman Tyagi Vs. Divyansh Garg) 26.11.2024 pending in the court of Judicial Magistrte, Garhmukteshwar, Hapur under Section 138 of NI Act P.S.- Garhmukteshwar, Distritct- Hapur. 6. The case of the applicant is that a complaint was lodged by the opposite party no.2 against the applicant on 05.12.2024 with an allegation that the applicant with respect to discharge of the liability had drawn a cheque bearing number 000045 of Rs.15,000,00/- which on presentation in the bank on 01.10.2024 was dishonored followed by a statutory demand notice dated Versus Counsel for Applicant(s) : Uma Nath Pandey Counsel for Opposite Party(s) : Sanjay Mishra, Surya Prakash Pandey, G.A. Divyansh Garg .....Applicant(s) State of U.P. and Another .....Opposite Party(s) 28.10.2025 and a complaint on 05.12.2024. Thereafter, the applicant came to be summoned on 21.04.2025 under Section 138 of the NI Act. Learned counsel for the applicant has submitted that the summoning order cannot be sustained in the simple reason that the complaint should be lodged post enforcement of BNSS, 2023 on 05.12.2024 and thus in view of provisions contained under first proviso to Sub-section 1 of Section 223 BNSS the applicant ought to have been put to notice and once he has not been put to notice the summoning order cannot be sustained. He seeks to rely upon the decision of Co-ordinate Bench of this Court in Prateek Agarwal Vs. State of UP 24 SCC online Allahabad 8212. 7. Questioning the said order the present application has been preferred. 8. Mr. S.P. Pandey and Mr. Sanjay Mishra learned counsel appearing on behalf of opposite party no.2 submits that though once the cheque withdrawn and it has been dishonored presumption under Section 139 NI Act would be there. However, according to them since the applicant has a grievance that he has not been heard at the pre-cognizance stage the matter be remitted back to the court below to pass a fresh order. 9. I have heard the submissions so made across the Bar and perused the records carefully. 10. Apparently, a complaint should be lodged on 05.12.2024 with respect to dishonor of a cheque followed by a statutory demand notice. The allegation of the applicant is that he has not been put to notice at a precognizance stage as per provisions under first proviso to Sub-section 1 of Section 223 BNSS, 11. Since it is the stand of counsel for the opposite party no.2 as per instructions that the summoning order be set aside and the matter be remitted back to the court below. Thus the application is being decided in the following manner. (A) The summoning order dated 21.04.2025 passed by learned Judicial Magistrte, Garhmukteshwar, Hapur in Complaint Case No. 2489 of 2024 (Naman Tyagi Vs. Divyansh Garg) under Section 138 NI Act, 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 facilitating early disposal, the parties shall furnish the certified copy NA528 No. 30593 of 2025 2 of the order before the court below by 08th October, 2025 and the court below shall proceed to decide the said proceeding with most expedition. 12. Needless to point out that the Court has not adjudicated upon the merits of the cases. 13. Accordingly, the application stands disposed of. September 19, 2025 Virendra NA528 No. 30593 of 2025 3 (Vikas Budhwar,J.) Digitally signed by :- VIRENDRA KUMAR BHARTEEY High Court of Judicature at Allahabad