Sheltor Care India Pvt. Ltd. Vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:91183

Court No. - 73

Case :- APPLICATION U/S 528 BNSS No. - 18300 of 2025

Applicant :- Sheltor Care India Pvt. Ltd. Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sandeep Mishra Counsel for Opposite Party :- G.A.

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Hon'ble Vikas Budhwar,J.

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Heard Sri Sandeep Mishra, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State.

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In view of the order, which is being 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 entire proceeding, including the impugned summoning order dated 24.07.2024 passed by learned A.C.J.(J.D.)-Ist, Kanpur Nagar, in Complaint Case No. 152833 of 2023 ( Anand Saxena Versus Sheltor Care India Pvt. Ltd. ), Under Section 138 N.I. Act. 1881, Police Station Kakadev, District Kanpur Nagar, pending in the court of A.C.J. (J.D.)-1st, Kanpur Nagar.

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The case of the applicant is that a complaint was lodged by O.P. No.2 on 03.11.2023 against the applicant under Section 138 of the N.I. Act with an allegation that with respect to arrears of rent, a cheque bearing number "97034" dated 10.09.2023 and cheque no. 097035" dated 10.10.2023 of Rs.40,000/- each were drawn, which were presented in the bank and the same came to be dishonoured on 17.10.2023. Thereafter on 03.11.2023, the complaint has been lodged under Section 138 of the N.I. Act and on 24.07.2024, the applicant has been summoned under Section 138 of N.I. Act in Complaint Case No.152833 of 2023, (Anand Saxena Vs. Sheltor Care India Pvt. Ltd.).

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Learned counsel for the applicant has submitted that the summoning order cannot be sustained even for a single moment for more than one reason. Firstly, as per the assertions contained in paragraph nos. 6 and 7 of the complaint, two cheques bearing number "97034" dated 10.09.2023 and "097035" dated 10.10.2023

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of Rs.40,000/- each, which was presented in the bank on 17.10.2023. Similarly, statement under Section 202 of the Cr.P.C., which is at page-18 of the paper-book, same averments have been made in paragraph no.3, 4 and 5 respectively. Learned counsel for the applicant submitted that once the cheques stood dishonoured on 17.10.2023, then the recital so contained of the legal notice dated 22.08.2023 cannot be taken into consideration as the legal notice should be after the dishonouring of the cheque. He further submits that the copy of the statutory demand notice is Annexure-4 at page-28 of the paper-book, relevant extract is at page-29 of the paper-book, wherein the recital is of a cheque of Rs.40,000/bearing no.09370.

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

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Interestingly, the aforesaid cheques were dishonoured on 17.10.2023, which ought to have been followed by a statutory demand notice under Section 138 of N.I. Act, however, here there is no statutory demand notice post dishonouring of the cheque and the reference which has been made is of a statutory demand notice dated 22.8.2023, which is anterior to the date of dishonour of the cheque. Apart from the same, the statutory demand notice also does not recite the factum of the dishonour of the cheque in question, but the same relates to cheque no. 09370. Apart from the same, the summoning order also takes note of dishonouring of a cheque bearing number "097034" and not the cheque no. 097035".

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Looking into the aforesaid aspects of the matter, the Court is of the firm opinion that the core and the fundamental issues, which ought to have been considered before summoning the applicant has not been adverted to. Since the summoning order has been passed in a mechanical manner without adverting the said fact and issues which is apparent from the face of the complaint and summoning order, thus the summoning order dated 24.07.2024 passed by learned A.C.J.(J.D.)-Ist, Kanpur Nagar, in Complaint Case No. 152833 of 2023 ( Anand Saxena Versus Sheltor Care India Pvt. Ltd. ), Under Section 138 N.I. Act. 1881, Police Station Kakadev, District Kanpur Nagar, pending in the court of A.C.J. (J.D.)-1st, Kanpur Nagar is quashed. Matter stands remitted back to the court below to pass a fresh order. For facilitation of early disposal, the

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applicant shall submit a certified copy of the order before the court below by 09.06.2025.

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Accordingly, the application stands disposed of .

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Order Date :- 28.5.2025 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

Sheltor Care India Pvt. Ltd. v. State of U.P. and Another

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