HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 36885 of 2025 Court No. - 75 HON'BLE VIKAS BUDHWAR, J. 1. Heard Sri Surendra Nath Tripathi, learned counsel for the applicant as well as Sri Vikas Sharma, learned State Law Officer for the State. 2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the entire proceeding of order dated 09-05-2024 passed by the Additional Civil Judge-Ist (Senior Division)/A.C.J.M. Rampur in Complaint Case No. 293 of 2024 U/s 138 N.I. Act (Iqbal Husain Vs. Nitish Dixit) Police Station Swar, District Rampur, which is pending before Additional Civil Judge-Ist (Senior Division)/A.C.J.M. Rampur. 3. The case of the applicant is that a complaint stood lodged by the O.P. No.2 under Section 138 of N.I. Act against the applicant with an allegation that with respect to an assurance that the opposite party no.2 would be made as a partner and would be offered 30% of the profits, the opposite party no.2 had tendered certain payments from the year 2021 to 2023 to the tune of Rs.47,00,000/- and with respect to discharge of the liability the applicant herein had drawn a cheque bearing no.000495 of Rs.60,00,000/- dated 30.11.2023 which on presentation in the bank on 2.12.2023 came to be dishonoured on 4.12.2023 followed by dishonouring on 7.12.2023 and 25.1.2024 and a statutory demand notice came to be issued on 15.2.2024 which was served upon the applicant on 17.2.2024 and a complaint was filed under Section 138 of the N.I. Act on 5.3.2024 and the applicant came to be summoned on 9.5.2024. 4. Learned counsel for the applicant has submitted that the summoning order Versus Counsel for Applicant(s) : Surendra Nath Tripathi Counsel for Opposite Party(s) : G.A. Nitish Dixit .....Applicant(s) State of U.P. and Another .....Opposite Party(s) cannot be sustained for the simple reason that the said cheque stood lost and it has been mistutilized by the opposite party no.2 to the detrament of the applicant and thus there is no legal debt or liability so as to invoke the provisions contained under Section 138 of the N.I. Act. He has further submitted that in para 1 of the complaint it has been alleged that certain amounts were tendered by the opposite party no.2 to the applicant but there is nothing on record to show as to what was the mode and manner by which the said amount stood transferred to the opposite party no.2. He has also submitted that there is no partnership deed so entered into between the parties. 5. Learned State Law Officer on the other hand submits that once the cheque stood drawn and it was dishonoured that 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. The sole question which arises for determination is the extent of judicial intervention at this stage. Apparently, a cheque stood drawn which has been dishonoured. On a pointed query being raised to the learned counsel for the applicant whether there has been any technical infraction/procedural infirmity with regard to the provisions contained under Sections 138 and 142 of the N.I. Act the answer is negative. 8. As regards the submission of the learned counsel for the applicant that the cheque stood stolen and that is why the payment was drawn is concerned and thus there is no legal debt or liability is concerned, the same is not convincible particularly for the reason being that there is nothing on record to show that there had been any complaint made to the police station or any written complaint to the bank officials even otherwise the same is subject matter of defence consideration whereof would be required to raise during the trial. 9. As regards the other submission of the learned counsel for the applicant is that there is no mode or manner shown for making the such payment is concerned the same may be a ground which might weigh the court below while taking decision whether this is a case of acquittal or conviction but the NA528 No. 36885 of 2025 2 same cannot be a ground to hold the summoning order to the bad. Moreover the presumption under Section 139 of the N.I. Act would be there. 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 23, 2025 piyush NA528 No. 36885 of 2025 3 (Vikas Budhwar,J.) Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad