HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 35549 of 2025 Court No. - 75 HON'BLE VIKAS BUDHWAR, J. 1. Heard Sri A.K. Upadhay, (AOR No.A/A1423/2012) holding brief of Sri Kanhaiya Lal Tiwari, learned counsel for the applicant and Sri Moti Lal learned AGA for the State. 2. This is an application filed under Section 528 of the B.N.S.S. for quashing this Hon'ble Court may graciously be pleased to quash the summoning order dated 20.09.2024 including entire proceeding of the Complaint Case No. 14351 of 2024 (Visambhar Nath Vs. Shri Nath Dubey) under section 138 of N.I Act Police station Kotwali, District Basti, pending in the court of Judicial Magistrate-Ist. Basti including the summoning order and to dismiss the complaint of the complainant opposite party no.2 pending in the court of Civil Judge (Senior Division)/ F.T.C., Basti. 3. The case of the applicant is that a complaint stood lodged under Section 138 of the N.I. Act against the applicant by the opposite party no.2 with an allegation that with respect to discharge of the liability the applicant herein while taking a loan the applicant herein had drawn a cheque bearing no. 980158 of Rs.10,00,000/- dated 8.2.2024 which on presentation in the bank came to be dishonoured on 9.2.2024 statutory demand notice came to be issued on 9.3.2024 which was served upon the applicant on 11.3.2024 and the applicant came to be summoned on 20.9.2024 under Section 138 of the N.I. Act. 4. Learned counsel for the applicant submits that the summoning order cannot be sustained for the simple reason that first of all the said cheque was a blank signed cheque which has been misutilized by filling the amount in figure and words and secondly in the complaint there is no recital about the total amount of loan advanced the number of the instalments paid, the total Versus Counsel for Applicant(s) : Kanhaiya Lal Tiwari Counsel for Opposite Party(s) : G.A. Shri Nath Dubey .....Applicant(s) State of U.P. and Another .....Opposite Party(s) amount due and the mode of recovery. He has further submits that there is no legal enforceable debt or liability so as to invoke the provisions contained under Section 138 of the N.I. Act. 5. Learned AGA submits that once the cheque stood drawn and it has been dishonoured then 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, with respect to dishonour of cheque of Rs.10,00,000/- statutory demand notice came to be issued followed by a complaint, the applicant came to be summoned. The question whether the said cheque was issued as a security cheque and the applicant has made the entire payment is a question of trial consideration whereof would be required when the trial commences as at best is a subject matter of defence. 8. Reliance has been placed upon the Hon'ble Apex Court in the case of M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another (2022) 18 SCC 631 has observed as under:- "In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques." 9. In Sunil Todi and others Vs. State of Gujarat, (2022) 16 SCC 762 the Hon'ble Apex Court has reiterated the aforesaid law. 10. As regards the other submission of learned counsel for the applicant is that the said complaint stands necessary details and facts regarding the total amount of loan advanced, the number of the instalments paid, the total amount due and the mode of recovery is concerned these are the subject matter which can be raised during the trial and they do not in any manner whatsoever are germane to the order summoning the applicant under Section 138 of the N.I. Act. 11. Moreover the presumption under Section 139 of the N.I. Act is always there. NA528 No. 35549 of 2025 2 12. Accordingly, interference is declined, application stands disposed of leaving it open to the applicant to raise all legal and factual issues as well as issue with respect to the fact that the cheque being a security cheque does not answer the description of a dishonour of the cheque in the trial and the Court has no reasons to disbelieve that the same shall be considered in accordance with law. September 16, 2025 piyush NA528 No. 35549 of 2025 3 (Vikas Budhwar,J.) Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad