Ritesh Kumar Sonakr Vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:83547

Court No. - 73

Case :- APPLICATION U/S 528 BNSS No. - 17626 of 2025

Applicant :- Ritesh Kumar Sonakr Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhay Kumar Kushwaha Counsel for Opposite Party :- G.A.

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Hon'ble Vikas Budhwar,J.

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Heard Sri Vishal Kumar (AoR No. A/O 1582/17) holding brief of Sri Abhay Kumar Kushwaha, learned counsel for the applicant and Sri Bhuwal Vishwakarma, learned A.G.A. for the State.

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In view of the order proposed to be passed today, notices are not being issued to O.P. No.2.

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This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 18.10.2022 as well as order dated 03.11.2023 and entire proceeding of Complaint Case No. 61284 of 2021 (Santosh Singh Vs Ritesh Kumar Sonkar) under section 138 Negotiable Instruments Act 1881, Police Station-Sachendi, District-Kanpur Nagar pending in the Court of Judicial Magistrate Ist, Kanpur Nagar.

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4.Learned counsel for the applicant has submitted that a complaint was lodged by O.P. No.2 on 31.03.2021 against the applicant under Section 138 of N.I. Act that with respect to discharge of liability with regard to purchase of the fruit the applicant is stated to have drawn a cheque bearing number "028968" dated 12.01.2021 for Rs.1,00,000/- which was presented on 14.01.2021, which came to be dishonoured on the ground "other reason/contact branch" and thereafter again, it was on the assurance of the applicant, presented in the bank on 02.02.2021, which was dishonoured with the

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remark "other reason/contact branch" and straightaway the complaint has been filed on 13.03.2021. Thereafter the applicant was summoned on 18.02.2022. Learned counsel for the applicant has submitted that one of the necessary requirements under Section 138 read with Section 142 of the N.I. Act that post-dishonour of the cheque, the statutory notice is to be issued to enable the drawer of cheque to make the payment. However, once there is no recital the factum of the issuance of the statutory notice, coupled with the fact that when the same was served, then the mandatory requirement as required under the statute remains unfulfilled making the complaint not maintainable. He further submits that in the summoning order, though reference has been made to a notice and the document, pertaining to registry, but there is no recital as to what was the date of the statutory demand notice and the registry and the outcome of the service. He thus submits that the summoning order cannot be sustained and is liable to be set aside.

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Learned A.G.A. on the other hand submits that as apparent from page-35/36 of the paper-book there is no recital about the issuance of the statutory notice, less to say about service of the same, which is one of the mandatory requirements. He however, submits that the summoning order be set aside and the matter be remitted back to the court below to pass a fresh order.

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I have heard the submissions so made across the Bar and perused the record carefully.

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Apparently, as per the complaint, a cheque stood drawn for an amount of Rs.1,00,000/- bearing number "028968" on 12.01.2021, which was dishonoured on two occasions, firstly on 14.01.2021, secondly on 02.02.201. However, there is no recital about the issuance of the statutory notice. Though the summoning order

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recites that the statutory notice was sent and the document whereof is on record along with the document of postal endorsement, but the Court finds that there is no consideration of the same. This is one of the mandatory conditions, which is required under the statute.

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Accordingly, looking into the over all facts and circumstances, the application stands disposed of . The summoning order dated 18.10.2022 passed in Complaint Case No. 61284 of 2021, Santosh Singh vs. Ritesh Kumar Sonkar is set aside. The matter stands remitted back to the court below to pass a fresh order.

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For facilitation of early disposal, the copy of the order passed today be served in the court below by 30.05.2025. The court below thereafter shall pass a fresh order strictly in accordance with law most expeditiously.

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Order Date :- 19.5.2025 N.S.Rathour

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(Vikas Budhwar, J)

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Digitally signed by :- NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad

Ritesh Kumar Sonakr v. State of U.P. and Another

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