Pooja Nigam Vs State of U.P. Thru. Prin. Secy. Home Lko. and Another

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Neutral Citation No. - 2025:AHC-LKO:21508

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Court No. - 12

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Case :- APPLICATION U/S 482 No. - 3192 of 2025

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Applicant :- Pooja Nigam Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another

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Counsel for Applicant :- Vikas Verma,Abhishek Srivastava,Shweta Srivastava

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Counsel for Opposite Party :- G.A.

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Hon'ble Alok Mathur,J.

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Heard Sri Vikas Verma, learned counsel for the applicant, learned A.G.A. for the State and Sri Abhisek, learned counsel who has put in appearance on behalf of respondent No.2 and filed vakalatnama, which is taken on record.

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By means of the present petition under Section 482 Cr.P.C. read with Section 528 of BNSS, the petitioner has assailed the validity of the summoning order dated 3rd February, 2023 passed by Civil Judge, Junior Division/Judicial Magistrate,Tanda, District Ambedkar Nagar.

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According to the complaint preferred by opposite party no.2 the petitioner had purchased wood from opposite party no.2 who is a dealer in various kinds of woods and against the purchase made by him he had issued a cheque bearing No.000029 dated 16.5.2022 for an amount of Rs.1, 34,000/drawn on HDFC bank and when the said cheque was presented for payment it was returned back with endorsement regarding insufficient funds and accordingly legal notice was sent to the petitioner on 14.6.2022 and when despite legal notice payment was not made the complaint was filed.

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The trial court relying upon the complaint and finding that all the ingredients of Section 138 of N.I.Act were made out had issued the summons to the petitioner. As the petitioner did not comply with the summoning order, non bailable warrants have been issued which has also been assailed in the present case.

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The only ground raised by the petitioner is that the amount has already been paid by the petitioner to respondent No.2 and certain receipts in this regard have been annexed along with the petition which are of previous dates than the dates when the cheque was given to respondent No.2 by the petitioner and

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claims that he does not owe any money to the complainant. The receipts are dated 11.9.2021, 22.9.2021, 15.10.2021, 15.10.2021, 5.1.2022, 26.1.2022, 9.2.2022, 16.2.2022, 3.3.2022 and 8.3.2022. Even if the contention of the petitioner is correct then it is noticed that the said plea can be raised before the trial court as provided for under Section 139 of N.I.Act where a presumption in favour of holder of a cheque is established, assuming they received it to discharge a debt or liability, unless contrary is proved. This implies that the burden of proof shifts to the accused to demonstrate why the cheque was not issued for the discharge of a debt or liability would be made out. Presumption can be rebutted by the accused and for which purposes evidence has to be placed before the trial court to the effect that no legal liability or debt was due to the complainant. At this stage merely on the basis of certain photo-copies of the receipts no finding can be returned in favour of the petitioner to the effect that no amount was due to the complainant. This is an issue which can be raised before the trial court and which after examining the same can return a finding in this regard.

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In the case of Saranya v. Bharathi, (2021) 8 SCC 583, the Apex court has reiterated the stance to be taken by the High Courts with regard to appreciation of evidence while deciding application under section 482 Cr.P.C.. The Relevant paragraph is as under:

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“11. In Deepak [State of M.P. v. Deepak, (2019) 13 SCC 62 : (2019) 4 SCC (Cri) 521] , to which one of us (Dr D.Y. Chandrachud, J.) is the author, after considering the other binding decisions of this Court on the point, namely, Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] , State of Rajasthan v. Fatehkaran Mehdu [State of Rajasthan v. Fatehkaran Mehdu, (2017) 3 SCC 198 : (2017) 2 SCC (Cri) 40 : (2017) 1 SCC (L&S) 545] , and Chitresh Kumar Chopra v. State (NCT of Delhi) [Chitresh Kumar Chopra v. State (NCT of Delhi), (2009) 16 SCC 605 : (2010) 3 SCC (Cri) 367] , it is observed and held that at the stage of framing of charges, the Court has to consider the material only with a view to find out if there is a ground for “presuming” that the accused had committed the offence. It is observed and held that at that stage, the High Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their

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face value, disclose the existence of all the ingredients constituting the alleged offence or offences. It is further observed and held that at this stage the High Court is not required to appreciate the evidence on record and consider the allegations on merits and to find out on the basis of the evidence recorded the accused chargesheeted or against whom the charge is framed is likely to be convicted or not.”

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No other ground has been urged by the petitioner in assailing the impugned order. Accordingly, we do not find any merit in challenge to the summoning order and from a perusal of the same we find that all the ingredients of Section 138 of N.I.Act were satisfied apart from which the plea raised before this Court can be adequately considered by the trial court at appropriate stage.

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Accordingly, the petition is without merits and is accordingly dismissed.

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(Alok Mathur, J.)

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Order Date :- 17.4.2025 RKM.

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Digitally signed by :- RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench

Pooja Nigam v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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Pooja Nigam v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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