Neutral Citation No. - 2025:AHC:144688 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 31147 of 2025 Applicant :- M/S Kanhaya Electric Works Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shakti Shanker Tiwari, Subhash Chandra Tiwari Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri S.S. Tiwari, learned counsel for the applicants as well as Sri Pankaj Kumar Rai, learned AGA for the State. 2. This application u/s 528 of BNSS has been preferred to quash the entire proceeding of Complaint Case No. 63933 of 2024 (M/s Om Sai Traders Vs. M/s Kanhaiya Electric Works Proprietor Rakesh Kumar Kushwaha), under Section 138 N.I. Act, Police Station Kotwali, District Kanpur Nagar, pending in Court of learned Special Metropolitan Magistrate, Court No. 2, Kanpur Nagar. 3. The case of the applicant is that a complaint stood preferred on 09.07.2024 by the opposite party no. 2 against the applicant under Section 138 of the NI Act with an allegation that with respect to discharge of a liability the applicant herein had drawn a cheque bearing no. 003970 dated 12.03.2024 of an amount of Rs. 4,88,926/- which on presentation in the bank on 20.04.2024 came to be dishonored on 22.04.2024 with the remark of "account closed" followed by a statutory demand notice dated 18.05.2024 which was sent on 19.05.2024 which came to be served upon the applicant on 20.05.2024 and a reply to the same was given by the opposite party no. 2 on 01.06.2024 and thereafter the was preferred on 09.07.2024 and the applicant came to be summoned on 17.01.2025 under Section 138 of the NI Act. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason that no legal debt or liability stands attracted so as to invoke the provisions of Section 138 of the NI Act. Submission is that even the said cheque stood lodged and a missing report was lodged on 29.05.2024 page 41, 42 and 43 of the paper book and further on 09.09.2024, proceedings under Section 175(3) of BNSS came to be lodged against the opposite party no. 2 pursuant whereto the case was directed to be treated as a complaint case on 24.03.2025. He further invites the attention of the Court towards the fact that the said cheques were of the year 2013 and they were invalid instrument and there happens to be no relationship with the opposite party no. 2 when the cheque is stated to have been drawn as the relationship with the opposite party no. 2 stood terminated in the year 2022. He further submits that once the cheque was stolen and it was prone to be mis-utilized and it was rather mis-utilized by the opposite party no. 2 then no offences under Section 138 of the NI Act would be made out. 4. Learned AGA, on the other hand, submits that once the cheque stood drawn and it was dishonored then the presumption under Section 139 of the NI Act would be there. 5. I have heard the submissions so made across the bar and perused the record carefully. 6. Apparently, with respect to dishonoring of a cheque, a statutory demand notice came to be issued which came to be replied by the applicant and the complaint came to be preferred. The question whether the said cheque was of the year 2013 and it was an invalid cheque cannot be gone into particularly when the reasons of dishonor is account closed. Further whether the said cheque was stolen, mis-utilized, these are the matter of defences consideration whereof would be required to when the trial commences. Further, the argument so sought to be raised that a missing report of the cheque was lodged and further proceedings under Section 175(3) of BNSS came to be lodged are those documents which are post dishonor of the cheque and further they are the matter of defences consideration whereof would not be required at a stage when the trial commences. In any view of the matter, the presumption under Section 139 of the NI Act is there 7. Accordingly, no case is made out for interfere, interference is declined, the application stands disposed of, leaving it open to the applicant to raise all legal and factual issues while contesting the trial. 8. At this stage, learned counsel for the applicant submits that a direction be issued for consideration of the bail. 9. This Court has no reason to disbelieve that in case, applicant moves appropriate proceedings before the court below for enlargement of bail, then the same may be decided with most expedition in accordance with law of the land. Order Date :- 22.8.2025 Rajesh Digitally signed by :- RAJESH KUMAR High Court of Judicature at Allahabad Digitally signed by :- RAJESH KUMAR High Court of Judicature at Allahabad