HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 36196 of 2025 Court No. - 75 HON'BLE VIKAS BUDHWAR, J. 1. Supplementary affidavit, filed today, is taken on record. 2. Heard Shri S. Saifullah (A/S 0694/12) holding brief of learned counsel for the applicant learned AGA for the State. 3. This application under Section 528 BNSS has been filed by the applicant to the summoning order dated 04.01.2025 passed by Judicial Magistrate Court No.8, Kanpur Nagar in complaint case no. 95282 of 2024 (Smt. Meena Gupta Vs Sri Hariom Gupta) Under Section 138 Negotiable Instrument Act, Police Station Nazirabad, District - Kanpur Nagar as well as Judgement and order dated 12.06.2025 passed by Sessions Judge, Kanpur Nagar in Criminal Revision No.232 of 2025(Hariom Gupta Vs. State of U.P. and Anr.). 4. The case of the applicant is that the complaint stood lodged on 25.09.2024 by the opposite party no. 2 against the applicant under Section 138 of the N.I. Act with an allegation that the applicant had drawn a cheque bearing No. 000178 of Rs. 10,00,000/-, which presentation in the bank which came to be dishonoured on 06.05.2024 followed by a statutory demand notice was issued on 17.08.2024, followed by a complaint under Section 138 of the N.I. Act on 25.09.2024. Pursuant whereto the applicant came to be summoned on 04.01.2025 against which the applicant preferred revision which came to be rejected on 12.06.2025. 5. Learned counsel for the applicant has submitted that since the complaint stood lodged under Section 138 of the Act in accordance with the provisions contained under first proviso to sub-section (1) Section 223 BNSS which mandates the Magistrate to put to notice the accused before at a pre- cognizance stage. Versus Counsel for Applicant(s) : Abdul Majeed, Farogh Majeed, Sufia Saba Counsel for Opposite Party(s) : G.A. Hari Om Gupta .....Applicant(s) State of U.P. and Another .....Opposite Party(s) 6. 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. 7. I have heard learned counsel for the parties and gone through the records carefully. 8. Apparently, with respect to dishonouring of the cheque bearing No. 000178 of Rs. 10,00,000/-, which presentation in the bank which came to be dishonoured on 06.05.2024 followed by a statutory demand notice was issued on 17.08.2024, followed by a complaint under Section 138 of the N.I. Act on 25.09.2024. 9. The question whether an accused is to be put to notice at a pre-cognizance stage under first proviso to sub-section (1) Section 223 BNSS is no more res integra as the Hon'ble Apex Court in Sanjabig Tari v. Kishore S. Borcar & Anr.: Criminal Appeal No. 1755 of 2010 decided on 25.09.2025 as held as under: "E. Recently, the High Court of Karnataka in Ashok Vs. Fayaz Aahmad, 2025 SCC OnLine Kar 490 has taken the view that since NI Act is a special enactment, there is no need for the Magistrate to issue summons to the accused before taking cognizance (under Section 223 of BNSS) of complaints filed under Section 138 of NI Act. This Court is in agreement Criminal Appeal No.1755/2010 Page 15 of 19 with the view taken by the High Court of Karnataka. Consequently, this Court directs that there shall be no requirement to issue summons to the accused in terms of Section 223 of BNSS i.e., at the pre-cognizance stage." 10. In view of the authoritative pronouncement of the Hon'ble Apex Court, the provision contained under first proviso to sub-section (1) Section 223 BNSS would not apply. In absnece of poinint out any infirmity with regard to the provisions contained under Section 138 read with Section 142 of the Act. This Court is not required to delve into factual issues. 11. Accordingly, the interference is declined, the application stands disposed of. 12. Leaving it open to the applicant to raise legal and factual grounds while contesting the trial. September 26, 2025 A. Prajapati NA528 No. 36196 of 2025 2 (Vikas Budhwar,J.) Digitally signed by :- ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad