Vinay Kumar Mishra Vs State of U.P. and Another

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HIGH COURT OF JUDICATURE AT ALLAHABAD

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APPLICATION U/S 528 BNSS No. - 3505 of 2025

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Vinay Kumar Mishra

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.....Applicant(s)

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Versus State of U.P. and Another .....Opposite Party(s) Counsel for Applicant(s) : Kripa Shankar Shukla, Sabha Shankar Tripathi Counsel for Opposite Party(s) : G.A.

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Court No. - 75

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HON'BLE VIKAS BUDHWAR, J.

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Heard Sri Kripa Shankar Shukla, learned counsel for the applicant and Sri S.K. Singh, learned A.G.A. for the State.

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This application under Section 528 BNSS has been filed by the applicant to quash the summoning order dated 08.11.2023 passed by Additional Civil Judge (Senior Division) Court No. 6 Mirzapur and to stay the further proceeding of Complaint Case No. 27 of 2023 Haresh Kumar Singh Versus Vinay Kumar Mishra under Section 138 N.I. Act.

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The case of the applicant is that a complaint stood lodged on 14.10.2022 by the opposite party no. 2 against the applicant under Section 138 of the N.I. Act with an allegation that the applicant had drawn a cheque bearing No.443177 of Rs.17 lakhs on 09.07.2022, presentation in the bank which came to be dishonoured on 18.08.2022, a statutory demand notice was issued on 03.09.2022, followed by a complaint under Section 138 of the N.I. Act on 14.10.2022 and the applicant came to be summoned on 18.11.2023 under Section 138 of the N.I. Act.

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Questioning the said order, the applicant has been filed the present application.

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Learned counsel for the applicant has submitted that the summoning order cannot be sustained that there was no legal debt or liability as it is apparent from the complaint with respect to a sale and purchase of a land, the

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NA528 No. 3505 of 2025

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applicant is alleged to have drawn cheque of Rs. 17 lakhs but the reality is that the said cheque came to be misutilized at the entire payment had already been made. Learned counsel for the applicant further submits that in the proceedings under Section 156 Cr.P.C. for lodging of the complaint under Sections 504, 506, 419, 420, 406, 468, 471, 147, 120B IPC, proceedings stood trigerred on 12.09.2022, wherein para-12, it was asserted as under:

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" यह िक िदनांक 25-08-2022 को प्राथीर् की जानकारी में आया िक प्राथीर् द्वारा िदये गये चौबीस-चौबीस लाख रूपया के दोनों चेक की धनरािश व िदनांक को कूट रचना करके उक्त सवेर्श कुमार िसह व हरेश कुमार - िसह द्वारा उक्त महेश िसह व प्रदीप कुमार िमश्र व रिवशंकर ित्रपाठी की सािजश व सहयोग व िमलीभगत से चौबीस लाख की जगह सत्रह लाख रूपया व िदनांक 02-06-2022 की जगह 09-07-2022 बनाकर उक्त चेकों के भुगतान हेतु िदनांक 18-08-2022 को अपने बैंक खाला में जमा िकया गया था।"

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Learned counsel for the applicant submits that the said proceedings stood transformed into a first information report. He further submits that the entire payments have been made, thus, there is no legal debt or liability.

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Learned AGA on the other hand submits that whatever arguments, are being raised, are subject matter of trial and presumption under Section 139 of the N.I. Act would be there.

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I have heard learned counsel for the parties and gone through the records.

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The sole question which arises for determination in the present proceedings is to the extent of judicial intervention. Apparently, the cheques stood drawn, followed by a statutory demand notice and the complaint and the applicant came to be summoned under Section 139 of the N.I. Act.

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On a pointed query being raised to the learned counsel for the applicant whether there has been any infraction of the provisions contained under Section 138 read with Section 142 of the N.I. Act, the answer is in negative. So far as the issue relatable to the fact that the question as to whether what was the reason of dishonour of a cheque, being miss-utilization of the cheque, is a question of trial. The presumption under Section 139 of the N.I. Act would be there.

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