HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 30341 of 2026 Court No. - 84 HON'BLE PRASHANT MISHRA-I, J. 1. Supplementary affidavit filed by learned counsel for the applicant is taken on record. 2. Heard Mr. Bhanu Pratap Singh, learned counsel for the applicant and learned A.G.A. representing the State. 3. Prayer of the applicant in the instant application is quoted herein below: "It is, therefore most respectfully prayed that this Hon'ble court may kindly be pleased to quash the Summoning Order dated 02.08.2025 (Annexure No.1) as well as entire proceedings arising out of Complaint Case No. 8240 of 2017 (Annexure No.2) (Saraswati Industries Vs. Mohan Prakash) under Section 138 of Negotiable Instruments Act, Police Station-Kotwali Katra, District-Mirzapur, Pending in the Court of Third Additional Civil Judge (Junior Division)/Judicial Magistrate, Mirzapur. It is further prayed that this Hon'ble Court may kindly be pleased to stay the further proceedings of Complaint Case No.8240 of 2017 (Saraswati Industries Vs. Mohan Prakash) under Section 138 of Negotiable Instruments Act, Police Station-Kotwali Katra, District-Mirzapur, pending in the Court of Third Additional Civil Judge (Junior Division)/Judicial Magistrate, Mirzapur, during the pendency of present application before this Hon'ble Court. And/or to pass such other and further order which this Hon'ble Court may deem fit and proper in the circumstances of the case. Versus Counsel for Applicant(s) : Bhanu Pratap Singh Counsel for Opposite Party(s) : G.A. Mohan Prakash .....Applicant(s) State of U.P. and Another .....Opposite Party(s) " 4. Learned counsel for the accused-applicant submits that the complaint filed by the complainant/opposite party No. 2 before the learned trial court was barred by limitation and the complainant filed delay condonation application dated 08.09.2017 before the learned trial court along with the complaint, but the learned trial court without taking into consideration the delay condonation application directly proceeded with the complaint and summoned the accused-applicant vide the impugned order dated 02.08.2025. Learned trial court has not at all taken into consideration the delay condonation application and this way the learned trial court has acted against the mandatory provisions of the law. 5. Learned counsel for the applicant also relined upon the judgement of the Hon'ble Supreme Court in the case of S. Nagesh Vs. Shobha S. Aradhya, 2026 INSC 27, wherein the Hon'ble Supreme Court has held that the power conferred upon the Court to take cognizance of a belated complaint is subject to the complainant first satisfying the Court that he had sufficient cause for not making the complaint within time. The satisfaction in that regard, resulting in condonation of delay, must therefore precede the act of taking cognizance. In paragraph No. 15 of the said judgement, Hon'ble Apex Court has also held that the learned Magistrate erred in taking cognizance of the respondent's complaint under Section 138 N.I. Act, even before the delay of two days in its presentation was condoned. Hon'ble Apex Court quashed the order of the High Court in that regard. 6. Learned A.G.A. also conceded to the fact that the learned trial court has not decided the delay condonation application and has passed the impugned summoning order. 7. In view of the above and in the light of judgement of the Hon'ble Supreme Court, as quoted above, the impugned summoning order dated 02.08.2025, passed by the learned trial court in the aforesaid case against the applicant, is not sustainable and is hereby set aside . NA528 No. 30341 of 2026 2 8. Learned trial court concerned is directed to first decide the delay condonation application dated 08.09.2017 of the complainant, and thereafter proceed with the aforesaid complaint in accordance with law. 9. With the aforesaid directions, the instant application U/s 528 B.N.S.S. stands disposed of. September 21, 2026 Kashifa NA528 No. 30341 of 2026 3 (Prashant Mishra-I,J.) Digitally signed by :- KASHIFA High Court of Judicature at Allahabad