HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 34384 of 2025 Court No. - 75 HON'BLE VIKAS BUDHWAR, J. 1. Heard Sri Sunil Kumar Rai, learned counsel for the applicant and Sri J.P. Gupta learned AGA for the State. 2. This is an application filed under Section 528 of the B.N.S.S. for quashing the entire proceeding including cognizance and summoning order dated 08.08.2023 of Criminal Complaint Case No. 9403/2023, Hirendra Singh vs. Rame, under Section 138 of the Negotiable Instruments Act, 1881, pending in the court of the Second Additional Chief Judicial Magistrate, Gautam Buddh Nagar. 3. The case of the applicant is that on 17.4.2023 a complaint stood preferred by the opposite party no.2 against the applicant under Section 138 of the N.I. Act with an allegation that with respect to discharge of a liability on 25.1.2023 the applicant herein had drawn a cheque of Rs.20,00,000/- bearing no.000103 which on presentation in the bank on 25.1.2023 came to be dishonoured on 2.2.2023 and the applicant came to be summoned on 8.8.2023. 4. Learned counsel for the applicant has submitted that summoning cannot be sustained for the simple reason that the cheque in question stood stolen and written complaint was sent through registered post to the Station House Officer, Gautam Budhnagar and post lodging of the proceedings under Section 156(3) Cr.P.C. an FIR was lodged bearing no.00726/2024 dated 5.12.2024, under Section 380 of the IPC against the unknown accused. He has further submitted that once the cheque stolen then it was misutilized and Versus Counsel for Applicant(s) : Sabya Sachee Rai, Suneel Kumar Rai Counsel for Opposite Party(s) : G.A. Rame .....Applicant(s) State of U.P. and Another .....Opposite Party(s) thus there is no legal debt or liability so as to invoke the provisions contained under Section 138 of the N.I. Act. 5. Learned AGA on the other hand submits that once the cheque stood drawn the presumption under Section 139 of the N.I. Act would be there. 6. I have heard the submissions so made across the bar and perused the record carefully. 7. Apparently, the allegation in the complaint is regarding the dishonouring of a cheque on 2.2.2023 followed by a statutory demand notice and a complaint. The question whether the cheque had been stolen or not and misutilization question of defence. Even the FIR dated 5.12.2024 under Section 380 IPC does not disclose about the theft of the cheque. Moreover, these are questions of defences consideration whereof would be required only when the trial commences. Moreover the presumption under Section 139 of the N.I. Act would be there. 8. 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 grounds and this Court has no reason to disbelieve that the court below shall consider the same in correct perspective. September 10, 2025 piyush NA528 No. 34384 of 2025 2 (Vikas Budhwar,J.) Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad