Allahabad High Court
Deepak Kumar Nishad vs State Of U.P. And Another on 23 July, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:120100
Court No. - 75
Case :- APPLICATION U/S 528 BNSS No. - 24743 of 2025
Applicant :- Deepak Kumar Nishad
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Dheerendra Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Vikas Budhwar,J.
1. Heard Sri Dheerendra Kumar Singh, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State.
2. This is an application under Section 528 of BNSS preferred by the applicant for quashing proceeding of Criminal Complaint Case No.2846 of 2023 and cognizance order dated 21.07.2023 under Section 138 of N.I. Act, Police Station Karwi, District Chitrakoot, pending in the court of Civil Judge (S.D./F.T.C.), Chitrakoot.
3. The case of the applicant is that a complaint was preferred by the O.P. No.2 under Section 138 of the N.I. Act against the applicant with an allegation that the O.P. No.2 is a finance company and the applicant herein for the purposes of purchase of a second-hand truck had taken financial assistance of an amount of Rs.8,00,000/-, however, in discharge of liability, the applicant had drawn the cheque bearing number ?077764? dated 22.03.2023 of Rs.8,00,000/- which on presentation in the bank was dishonoured on 22.03.2023 with the remark ?insufficient fund?, return memo was dated 04.04.2023 and the statutory demand notice came to be issued on 25.04.2023 followed by the complaint dated 22.05.2023 and the applicant came to be summoned on 21.07.2023 under Section 138 of N.I. Act.
4. Questioning the summoning order dated 21.07.2023, learned counsel for the applicant has filed the present application.
5. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason that the said cheque was a security cheque and thus it does not answer the description of debt and liability under Section 138 of the N.I. Act. Further submission is that no debt or liability stood accrued, particularly, when the loan was taken no 20.03.2019, whereas the complaint stood preferred on 22.05.2023, thus the same was time-barred. Reliance has been placed upon the judgment in M/s Balaji Seafoods Exports (India) vs. Mac Industries Ltd. 1999(1) CTC 6 and Laxminivas Agarwal vs. Andhra Semi Conductors Pvt. Ltd. and others, 2006CRILJ2643.
6. Learned counsel for the applicant submits that the summoning order is cryptic and it has been passed on mere asking without there being any prima facie attraction of the offences.
7. Learned State Law Officer on the other hand submits that once the cheque stood drawn, then the presumption under Section 139 of N.I. Act would be there, and the question as to whether the cheque was by way of security is a question of trial.
8. I have heard the submissions so made across the bar and perused the record carefully.
9. Apparently, as per the allegations in the complaint, the applicant had applied for a loan and he was accorded financial assistance for purchase of a second-hand truck. The amount of loan was Rs.8,00,000/-, however, as per the applicant owing to COVID-19, the applicant could not make the payment of loan amount and the vehicle was toed. The argument of learned counsel for the applicant that the cheque which is stated to have been dishonoured was a security cheque, thus it does not answer the description of debt or liability under Section 138 of N.I. Act, is not convincible. In M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another, (2022) 18 SCC 631, the Hon'ble Apex Court had the occasion to consider the issue as to whether the determination can be done at the stage of summoning when the allegation that the cheque was a security cheque is concerned. The Hon'ble Apex Court has observed as under: -
"In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques."
10. The aforesaid law has been followed subsequently in Sunil Todi and others vs. State of Gujarat, (2022) 16 SCC 762.
11. Further this Court in an Application u/s 528 BNSS No.8615 of 2025, Amarjeet Yadav vs. State of U.P. and others decided on 18.03.2025, had the occasion to consider the said issue and while relying upon the decision in Sampelly Satyanarayan Rao vs Indian Renewable Energy Development Agency Limited 2016 (10) SCC 458 and Hmt Watches Ltd vs M.A. Abida & Anr 2015 (11) SCC 776, the relief was declined on the ground that the issue as to whether the cheque was by way of security is a subject matter of trial. As regards the second submission of learned counsel for the applicant that the debt and liability so claimed and raised by O.P. No.2 is time-barred is concerned, the same is an issue, which would need evidence and it is an mixed question of fact and law which is to be raised and appropriately dealt during the conduction of the trial and not at the stage of the summoning. Moreover, the contention that the vehicle stood toed away and was sold by O.P. No.2, thus no liability exists is a defence, consideration whereof would arise during the trial. Moreover, presumption under Section 139 of N.I. Act post-drawing of the cheque would be in favour of the holder, O.P. No.2.
12. Accordingly, interference is declined. Application is disposed of leaving it open to the applicant to contest the trial while taking all legal and factual grounds before the court below and this Court has no reason to disbelieve that the court below shall consider the same in correct perspective.
Order Date :- 23.7.2025
N.S.Rathour
(Vikas Budhwar, J)
