Allahabad High Court
Kamlesh Chandra Sharma vs State Of U.P. And Another on 11 August, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:136487
Court No. - 75
Case :- APPLICATION U/S 528 BNSS No. - 13562 of 2025
Applicant :- Kamlesh Chandra Sharma
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Anil Kumar Pathak,Chandra Pratap Singh
Counsel for Opposite Party :- G.A.,Sudhakar Shukla
Hon'ble Vikas Budhwar,J.
1. Heard Shri Anil Kumar Pathak, learned counsel for the applicant and Sri S.K. Singh, learned AGA for the State as well as Shri Sudhakar Shukla, counsel for opposite party no. 2.
2. The counsel for the rival parties have made a joint statement that they do not propose to file any further affidavits, thus, with the consent of the parties, the application is being decided at the fresh stage.
3. This application under Section 528 BNSS has been filed by the applicant to quash summoning order dated 15.05.2024 passed by Additional Civil Judge (JD)-4, Metropolitan Magistrate, Kanpur Nagar in complaint case no.36569 of 2024 (Pawan Kumar Awasthi Vs Kamlesh Chandra Sharma) under Section 138 of the Negotiable Instrument Act P.S. Naubasta District Kanpur Nagar.
4. Learned counsel for the applicant submits that a complaint was lodged by the opposite party No. 2 on 10.04.2024 under Section 138 of the N.I. Act with an allegation that with respect to discharge of a liability, the applicant herein had drawn two cheques bearing Nos. 643791 and 643792 worth of Rs. 5,00,000/- each dated 16.10.2023 which on presentation in the bank, came to be dishonored on 16.01.2024, information was gathered by the applicant on 19.02.2024 and the statutory demand notice came to be issued on 11.03.2024 followed by the complaint under Section 138 of the N.I. Act on 10.04.2024 and the applicant came to be summoned on 15.05.2024.
5. Questioning the summoning order, the applicant has been filed the present application.
6. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason, particularly, when as per the own case of the opposite party No. 2, the cheques in question were drawn on behalf of Royal Green Home Pvt. Ltd., a private limited company but in the complaint, the said company has not been arraigned as an accused. He seeks to rely upon the judgment of the in the case of Aneeta Hada Vs. M/s Godfather Travels & Tours (P) Ltd. (2012) 5 SCC 661. Further submission is that there was a delay in sending the notice, particularly, when the said cheques were dishonored on 16.01.2024 and the statutory demand demand notice was issued on 11.03.2024. However, he submits that the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders.
7. Shri Sudhakar Shukla who appears counsel for the opposite party No. 2 submits that there is no delay in issuance of the statutory demand notice, particularly, when the cheques stood dishonored on 16.01.2024 and the communication whereof was made on 19.02.2024 and, in case, the applicant disputes the said fact then it is for him to contest in the trial. He, however, submits that so far as the non-arraigning of the company as an accused, he, however, could not dispute the fact the provision of law laid down in Aneeta Hada (supra) and according to him, the company ought to have been arraigned as an accused. He as per the instructions received from his client submits that the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders so as to enable him to prefer an implement implement.
8. Shri S.K. Singh, learned AGA supports the argument of the counsel for the opposite party no. 2.
9. I have heard learned counsel for the parties and gone through the records carefully.
10. It is apparent that two cheques were stood drawn which came to be dishonoured. The said cheques were drawn on behalf of the company but in the array of the parties, the company has not been arraigned as one of the accused and further they have not been served any notice so as to put on motion the complaint.
11. However looking into the fact that the delay of issue and non-arraigning of the company as an accused, has been raised and the same has not been dealt with in the summoning order and as per the instructions received from the client, the counsel for the opposite party No. 2 submits that the summoning order is set aside and the matter stands remitted back to pass fresh order, thus, the summoning the summoning order is liable to be set aside.
12. Accordingly, the application is being decided in the following manner:
(a) The summoning order dated 15.05.2024 passed by Additional Civil Judge (JD)-4, Metropolitan Magistrate, Kanpur Nagar in complaint case no.36569 of 2024 is set aside.
(b). The matter stands remitted back to pass fresh order strictly in accordance with law.
13. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 28.08.2025 and the court below shall proceed to decide the said proceeding with most expedition.
14. Needless to point out that the Court has not adjudicated upon the merits of the case.
15. Accordingly, the application stands disposed of.
Order Date :- 11.8.2025
A. Prajapati
