Kunal Dogra vs State Of U.P. And Another
2025 Latest Caselaw 1089 ALL

Allahabad High Court

Kunal Dogra vs State Of U.P. And Another on 19 May, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:82991
 
Court No. - 73
 

 
Case :- APPLICATION U/S 528 BNSS No. - 17598 of 2025
 

 
Applicant :- Kunal Dogra
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Anurag Vajpeyi,Praveen Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.
 

1. Heard Sri Anuraj Vajpeyi, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order, dated 23.02.2017 passed by learned Additional Court No. 3, Gautam Budh Nagar along with the entire proceedings of Complaint Case No. 586 of 2022 (Sandeep Vs. Kunal) u/s 138 N.I. Act, Police Station Sector-20, Gautam Budh Nagar, pending in the court of learned Additional Court No. 1, Gautam Budh Nagar.

3. Learned counsel for the applicant has submitted that a complaint was lodged by O.P. No.2 against the applicant under Section 138 of N.I. Act on 16.06.2016 with an allegation that pursuant to understanding between the applicant and O.P. No.2 with regard to construction/ purchase of a 2-BHK flat, O.P. No.2 had made a total payment of Rs.44,20,000/-, with regard to discharge of liability, a cheque bearing number "694792" dated 12.04.2016 for an amount of Rs.28,50,000/- was drawn by the applicant in favour of O.P. No.2 which on presentation in the bank was dishonoured on 28.04.2016, thereafter, a statutory notice came to be issued on 25.05.2016 and the complaint was filed on 16.06.2016. Thereafter on 23.02.2017, the Court of Addl. Court No.3, Gautam Budh Nagar in Complaint Case No.586 of 2022, Sandeep Vs. Kunal proceeded to summon the applicant under Section 138 of the N.I. Act.

4. Learned counsel for the applicant has submitted that the complaint so lodged by O.P. No.2 on 16.06.2016 under Section 138 of the N.I. Act, cannot be proceeded in any manner whatsoever, as it is bound to fall particularly when there are concealment of facts which itself dis-entitles relief in favour of the complainant. Submission is that there happened to be a notarized agreement executed between the parties on 17.12.2014, a copy whereof is Annexure-3 at page-41 of the paper-book, however without disclosing the said agreement, wherein the cheque bearing number "694792" of Rs.28,50,000/- was with O.P. No.2 as security, the same has been misutilized in such a manner, so as to get it dishonoured. Contention is that the security cheque was with respect to a different transaction, but it was included as a tool for the purposes of invocation of the proceeding of Section 138 of the N.I. Act. Further submission is that even infact, the O.P. No.2 herein has also lodged an FIR being FIR No.0003 of 2017 under Sections 420, 467, 468 and 120-B IPC. Reliance has been placed upon the recent judgment of the Hon'ble Apex Court in the case of Rekha Sharad Ushir vs. Saptashrungi Mahila Nagari Sahkari Patsansta Ltd., 2025 SCC OnLine SC 641 so as to contend that in case there are vital non-disclosure of fact, then it goes to the root of the matter, which would denude any benefit to the complainant. Further reliance has been placed upon the judgment of Hon'ble Apex Court in S.P. Chengalvaraya Naidu vs. Jagannath and others, (1994)1 SCC 1 so as to further contend that a complainant or a person who sets the criminal proceedings under motion has to come with a clean hands. It is thus prayed that the summoning order as well as the entire proceedings be quashed.

5. Learned A.G.A. on the other hand submits that the summoning order is dated 23.02.2017, thus this Court after a period of eight years may not interfere at this stage, particularly when the proceedings are underway. He further submits that the cheque was whether a security cheque or not is not a matter of trial. Further the presumption under Section 139 of the N.I. Act would be in favour of holder of the cheque.

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

7. Apparently, a cheque bearing number 694792 of an amount of Rs.28,50,000/- is stated to have been drawn by the applicant, which came to be dishonoured on 28.04.2016 followed by statutory notice on 25.04.2016 and the complaint on 16.06.2016 further followed by summoning of the applicant on 23.02.2017. As regards the contention so raised by learned counsel for the applicant that the factum of an execution of the notarized agreement has not been disclosed whereby the subject cheque was issued as a security with relation to another transaction is concerned and the same has been included in the present proceeding while getting it dishonoured while terming it to be a cheque drawn by the applicant to O.P. No.2 for return of the money which was paid for purchase of a flat is concerned, they are the matters of trial. This Court at this juncture is not required to delve into the factual aspects. 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."

8. The aforesaid law has been followed subsequently in Sunil Todi and others vs. State of Gujarat, (2022) 16 SCC 762.

9. With respect to the submission that the applicant has not disclosed the factum of an agreement so entered into between the O.P. No.2 and the applicant and the non-disclosure itself is fatal is concerned, this Court is not required to go into the said aspect of the matter, as the same is matter of trial. There is no quarrel to the proposition of law laid down in Rekha Sharad Ushir (supra) and S.P. Chengalvaraya Naidu (supra) that a complainant has to come with a clean hands, however, the stage and consideration whereof has not arrived, particularly when the summoning order has been issued on 23.02.2017 and as per the statement made by the learned counsel for the applicant, the proceedings are at this stage of 313 CrPC. Since there happens to be an un-explained and inordinate delay of eight years in approaching this Court, thus it would not be appropriate for this Court to throttle the investigation at this stage.

10. The interference is declined. The application is disposed of granting liberty to the applicant to take all legal and factual contentions to substantiate its case and the Court has no reason to disbelieve that the court below shall consider and decide the same in correct perspective.

Order Date :- 19.5.2025

N.S.Rathour

(Vikas Budhwar, J)