HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 36636 of 2025 Court No. - 75 HON'BLE VIKAS BUDHWAR, J. 1. Heard Sri Chandra Narayan Mishra, learned counsel for the applicant as well as Sri Pankaj Kumar Rai, learned State Law Officer for the State. 2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 28-07-2023 passed by Additional Civil Judge (Junior Division), Court No. 1, Kanpur Nagar in Complaint Case No. 94207/2021 (Mohd. Irshad Vs. Naveen Kumar Kushwaha) u/s 138 N.I. Act, Police Station- Bajariya, District- Kanpur Nagar alongwith entire proceeding of Complaint Case No. 94207/2021 (Mohd. Irshad Vs. Naveen Kumar Kushwaha) u/s 138 N.I. Act, Police Station- Bajariya, District- Kanpur Nagar pending before the Court of Civil Judge (Junior Division), Court No. 1, Kanpur Nagar. 3. The case of the applicant is that a complaint stood lodged on 02.08.2021 by the O.P. No.2 under Section 138 of N.I. Act against the applicant with an allegation that the O.P. No.2 with an allegation that with respect to discharge of a liability the applicant herein had drawn a cheque bearing no. 008808 of Rs.3,00,000/- which on presentation in the bank came to be dishonoured on 22.1.2021 a statutory demand notice came to be issued on 04.02.2021 and thereafter again the cheque on the assurance of the opposite party no.2 was presented in the bank on 16.3.2021 which was dishonoured on 18.3.2021 and on 31.3.2021 a statutory demand notice came to be withheld and a complaint was filed on 2.8.2021. 4. Learned counsel for the applicant has submitted that the summoning Versus Counsel for Applicant(s) : Chandra Narayan Mishra Counsel for Opposite Party(s) : G.A. Naveen Kumar Kushwaha .....Applicant(s) State of U.P. and Another .....Opposite Party(s) order cannot be sustained for more than one reason. Firstly, the said cheque was a security cheque which does not answer the description of debt and liability so as to invoke the provisions of Section 138 of the N.I. Act. Secondly, the said cheque was presented in the bank on 20.1.2021 which was dishonoured on 22.1.2021 and again represented on 16.3.2021 and dishonoured on 18.3.2021 and the statutory demand notice came to be issued on 31.3.2021, however, the complaint had been filed on 2.8.2021 that much below the prescribed period and thus there is a clear cut interaction of provisions contained under Sections 138 and Section 142 of the N.I. Act. 5. Learned State Law Officer on the other hand submits that whatever arguments has been made, they are matter of defence and presumption under Section 139 of the N.I. Act is there. 6. I have heard the submissions so made across the Bar and perused the record carefully. 7. Apparently, with respect to dishonouring of a cheque, a statutory demand notice came to be issued followed by a complaint. The question whether the said cheque is security cheque or not is a subject matter of trial, as the said issue is no more res-integra, as held by the Hon'ble Apex Court in M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another, (2022) 18 SCC 631, in which the Hon'ble Apex Court had the occasion to consider the issue as to whether the determination can be done at the stage of summoning when the allegation that the cheque was a security cheque is concerned. The Hon'ble Apex Court 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." 8. The aforesaid law has been followed subsequently in Sunil Todi and others vs. State of Gujarat, (2022) 16 SCC 762. 9. As regards the other contention of the learned counsel for the applicant NA528 No. 36636 of 2025 2 that the complaint had been lodged much beyond the convincible period and without there being any delay condonation application seeking condonation of delay the delay could not have been condoned that without putting to notice to the applicant is concerned the same is preposterous. In the present case,it is a matter of common knowledge that the pandemic relating to corona came with its own velocity and magnitude pursuant whereto for the period from March 15, 2020 till February 28, 2022, the Hon'ble Apex Court had taken a suo motu cognizance and proceeded to pass series of orders (2022) 3 SCC 117 In Re: Cognizance for Extension of Limitation by order dated 10.01.2022 extending the period of limitation, thus, it cannot be said that condonation of delay is bad in the eyes of law. Moreover, presumption under Section 139 of N.I. Act is there. So far as the issue with regard to the liability of the applicant to make the payment on the ground that the applicant is not liable to pay the said amount is concerned the same is subject matter of defence consideration whereof. 10. Accordingly, interference is declined. The application is disposed of leaving it open to the applicant to contest the proceedings 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 22, 2025 piyush NA528 No. 36636 of 2025 3 (Vikas Budhwar,J.) Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad