Section 138 of the NI Act. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for a simple reason that in order to attract the provisions of Section 138 of the NI Act with respect to debt and liabilities what would be relevant would be the actual determined amount which is to be due against for which in order to discharge the said liability, cheques are being drawn. He submits that in the present case in hand as per the complaint in para 3 the allegation is that the total amount due and payable for the work entrusted and completed was 11,15,801-/, however, an FIR also came to be lodged by the opposite party no. 2 against the applicant before the police station Quarsi, District Aligarh being FIR No. 0743 under Sections 406, 420, 467, 468, 471, 504 and 506 wherein the amount is stated to be due was 9,11,801/-. Attention has also been drawn towards the complaint with respect to other cheques being Complaint No. 304 of 2024 wherein the amount shown to be due was 9,11,801/-, thus, according to the learned counsel for the applicant once there happens to be two different amounts depicting the total amount due and cannot payable then the entire story so sought to be cooked up with relation to dishonoring of the cheque in discharge of the liability itself is bound to fail. Learned counsel for the applicant further submits that the said cheques were kept with the opposite party no. 2 as security and they have been mis-utilized particularly when the applicant herein was a sub-contractor in order to discharge the work for the opposite party no. 2 certain cheques were drawn by the applicant which was kept as security but they were misused and mis-utilized, thus, no offences are committed under Section 138 of the NI Act. Further submission is that though in the complaint in paragraph no. 7, it has been asserted that the applicant had submitted reply through its counsel on 10.03.2024 through legal notice but as per the instructions received by the counsel for the applicant, no such reply was submitted to the said comment.
