Lalit Kumar Kaian Vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:104134

Court No. - 75

Case :- APPLICATION U/S 528 BNSS No. - 20434 of 2025

Applicant :- Lalit Kumar Kaian Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sunil Vashisth Counsel for Opposite Party :- G.A.

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Hon'ble Vikas Budhwar,J.

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Heard Sri Sunil Vashisth, learned counsel for the applicant and the learned A.G.A. for the State

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This is an application under Section 528 of BNSS preferred by the applicant for quashing the order dated 10.03.2025 passed by Civil Judge (JD)/Judicial Magistrate, Jalaun, District Jalaun in Complaint Case No. 666 of 2022 (Lokendra Singh Tomar Vs. Surjeet Singh Bhadauria) u/s 143A N.I. Act pending in the court of Civil Judge (JD)/Judicial Magistrate, Jalaun, District Jalaun.

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Learned counsel for the applicant has submitted that a complaint was lodged by O.P. No.2 on 30.07.2018 against the applicant under Section 138 of the N.I. Act with an allegation that with respect to grant of financial assistance to the tune of Rs.2,50,000/- by the O.P. no.2 to the applicant, the applicant for discharge of liability, had drawn a cheque bearing number "265707" of Rs.2,50,000/dated 15.06.2018, which on presentation in the bank on 18.06.2018 was dishonoured on account of insufficient fund on 19.06.2018, followed by a statutory demand notice 07.07.2018 and the complaint dated 30.07.2018. Thereafter the applicant was summoned on 04.12.2018 under Section 138 of the N.I. Act. The trial stood commenced and on 28.08.2023 was the date fixed, wherein the statement of O.P. no.2 /complainant was to be recorded as CW-1 and on the said date, complainant filed an application that his previous statement recorded under Section 200 CrPC may be read as his evidence and the said application came to be allowed.

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Questioning the summoning order as well as the order dated 28.08.2023, the applicant has filed the present application.

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Learned counsel for the applicant submits that first of all, there is no legal enforceable debt or liability attracted in the present case, particularly when the cheque in question, which is stated to have been dishonoured was with O.P. No.2 as security. Submission

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is that a cheque, which is as a security does not answer the definition of debt and liability. Further submission is that there has been complete violation of the provisions contained under Section 254 of the CrPC, in as much as the evidence of the complainant as required under Section 254 CrPC was not recorded, as instead of the said evidence on an application filed by the complainant to read his statement under Section 200 CrPC (pre-summoning evidence) was put to motion.

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Learned A.G.A. on the other hand submits that once the cheque stood drawn and the same was dishonoured, then the presumption of Section 139 of N.I. Act would be always in favour of the holder of cheque and further so far as the issue regarding the cheque being treated to be security is a subject matter of trial. He further submits that no prejudice whatsoever has been caused by virtue of the passing of the order dated 28.08.2023, particularly when the applicant would have the right to cross-examination and to plead its defence.

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

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Apparently, post dishonouring of a cheque, a complaint was lodged on 30.07.2018, the summoning order came to be passed on 04.12.2018, however, the present application has been presented before this Court on 25.05.2025. After approximately 7 years, there is no plausible explanation offered in approaching the Court after inordinate delay. As regards the submission that the cheque in question was a security cheque, thus it does not answer the description of debt and liability so as to invoke provisions under Section 138 of N.I. Act is concerned, suffice is to say that the same is subject matter of trial as held in M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another , (2022) 18 SCC 631 and Sunil Todi and others vs. State of Gujarat , (2022) 16 SCC 762 with respect to the argument so that there is violation of Section 254 of CrPC, as on 28.08.2023, the statement of complainant was to be recorded as CW-1, however on the basis of the application preferred by the O.P. No.2 complainant that his previous statement recorded under Section 200 CrPC may be read as an evidence is concerned, the same is not convincible at all, no prejudice whatsover has been caused, as rather to the contrary, it is always open for the applicant to plead his defence and to take all legal and factual grounds, which are available under law.

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