Neutral Citation No. - 2025:AHC:64055 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 1994 of 2025 Applicant :- Chauthi Prasad Opposite Party :- State of U.P. and Another Counsel for Applicant :- Akash Deep Srivastava Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Akash Deep Srivastava, learned counsel for the applicant as well as Sri Sudhir Chandraul learned A.G.A. for the State/opposite party no.1. 2. This application under Section 528 of the B.N.S.S. has been filed by the applicant to quash the entire proceedings of Complaint Case No. 1017 of 2022, (Upendra Chaubey Vs. Chauthi Prasad), under Section 138 of the IPC, Police Station- Cantt., District Gorakhpur, pending before the court of learned Additional Chief Judicial Magistrate, Court No.3, Gorakhpur. 3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no.2 against the applicant on 20.1.2022 with an allegation that with respect to supply and purchase of bricks, the applicant had drawn a cheque dated 23.11.2021 of an amount of Rs.3,00,000/- bearing no.588067 which when presented in the bank on 24.11.2021 was dishonoured, a statutory demand notice is stated to have been issued on 18.12.2021 and thereafter on account of non-payment the complaint was lodged on 20.1.2022. He has further submitted that there happens to be an agreement between the applicant and the opposite party no.2 with respect to purchase of plot and the applicant while inviting attention towards page 38 which happens to be online bank pass submits that on 8.11.2021 followed on 15.11.2021, two cheques of Rs.3,00,000/- each stood credited in the account of opposite party no.2 and on 23.11.2021 an amount of Rs.4,00,000/- was withdrawn from the bank account of the applicant and was tendered to the opposite party no.2. He has also submitted that on 27.5.2022 a legal notice was also served by the applicant upon the opposite party no.2 with regard to execution of a sale deed since total Rs.3,00,000/- by cheque and Rs.4,00,000/- by in cash has been paid out of total amount of Rs.10,000,00/-. He has next submitted that a first information report also stood lodged on 27.5.2023, FIR No.313 of 2023, under Sections 506, 406 IPC by the applicant against the opposite party no.2. Thus, it is also submitted that the complaint is not bona fide, it has been used to harass and rope in the applicant and he seeks to rely upon the judgement of Hon'ble Apex Court in the case of Rekha Sharad Ushir vs Saptashrungi Mahila Nagari Sahkari, Criminal Appeal No.724 of 2025 decided on 26.3.2025. 5. Learned AGA on the other hand submits that once the cheques stood drawn then the presumption under Section 139 of the N.I. Act would lie. He further submits that whatever arguments of being sought to be raised at the matter of defences. 6. I have heard the learned counsel for the parties and perused the record. 7. Apparently the complaint discloses dishonouring of a cheque of an amount of Rs.3,00,000/- which is dated 23.11.2021 on 24.11.2021 and a statutory notice on 18.12.2021 on 20.1.2022 and followed by a complaint on 20.1.2022. Though the learned counsel for the applicant has sought to rely upon page 38 of the paper book being the bank statement showing that Rs.3,00,000/- and Rs.3,00,000/- each were paid on 8.11.2021 and on 18.11.2021 and Rs.4,00,000/- were withdrawn from the bank account of the applicant by the applicant and tendered the same to the opposite party no.2 on 22.11.2021 but these are the matter of trial which cannot be seen. Apart from the same, the theory so sought to be propounded by the applicant that the entire transaction relatable to the drawing of the cheque was for a purchase of plot of land which was owned by the opposite party no.2 by the applicant is concerned the same is cannot be considered as the same is also matter of trial bearing in the mind the fact that the legal notice dated 27.5.2022 and the FIR has been lodged on 27.5.2023. As a matter of fact, presumption under Section 139 of the N.I. Act is always against the applicant. So far as the arguments relying upon the judgement in the case of Rekha Sharad Ushir (Supra) is concerned the applicability, there is no quarrel to the proposition of law so laid down therein, it is the duty of complainant to have approached the court with clean hands but the stage of the consideration of the same has not arisen till date. Thus, interference is declined and the application is consigned to record. 8. At this stage, learned counsel for the applicants submits that suitable direction be issued in light of the judgment in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another; decided on 07.10.2021 in S.L.P. No.5191 of 2021 with relation to enlargement on bail. 9. In the opinion of the Court, once a bail application is preferred then the same shall be considered with most expeditions strictly as per the law of the land without any delay. Order Date :- 25.4.2025/piyush Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad