SMT. LATA DEVI SONIversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 10435 of 2026

Smt. Lata Devi Soni
                                                               .....Applicant(s)
                                    Versus

State of U.P. and Another
                                                                  .....Opposite
                                                                        Party(s)

Counsel for Applicant(s)              :      Rajiv Dwivedi, Ravi Kumar
Counsel for Opposite Party(s)         :      G.A.

Court No. - 74
                      HON'BLE DEEPAK VERMA, J.

1. Supplementary affidavit, filed today, is taken on record.

2. Heard Sri Ravi Kumar Dubey, learned counsel for the applicant and
learned AGA for the State.

3. The present 528 BNSS application has been filed to quash the
impugned Summoning order dated 12.01.2026 passed by Learned Civil
Judge (S.D.)/F.T.C., Chitrakoot as well as entire proceeding in Complaint
Case No. 4036 of 2025 (Vijay Prakash Tripathi vs. Smt. Lata Devi Soni)
under section 138 of Negotiable Instruments Act at Police Station Karwi,
District Chitrakoot, pending in the court of Learned Civil Judge
(S.D.)/F.T.C., Chitrakoot.

4. Counsel for the applicant submits that it is alleged in the complaint that
applicant on promise to sell his property to opposite party no.2 took Rs.60
lacs but the applicant sold the property to some other person, when
complainant asked to return his money then applicant issued two cheques,
bearing Nos.000050 and 000052, and when the same were presented
before Bank on 16.07.2025, the same got dishonoured/returned on
17.07.2025 with remark "Payment stopped by drawer", thereafter,
complainant sent registered/statutory demand notice to applicant, which
was served on 26.07.2025 and the present complaint was lodged on
08.08.2025. He further submits that instant complaint has been lodged
with malice intention. Prima facie, no offence under the alleged section is
made out. The disputed cheques have been lost somewhere and in this
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regard applicant had registered a complaint in the concerned police
station. U/s 223 BNSS notice was issued to the applicant and applicant
appeared before trial court and filed objection but trial court without
considering the objection, issued summon. Cognizance and summoning
by learned Magistrate is without application of judicial mind.

5. Per contra, learned A.G.A. opposed the submission raised by
applicant's counsel.

6. Considering the argument raised by applicant's counsel, the submission
raised by applicant's counsel is disputed question of facts which cannot be
examined at this stage. Moreover, it is admitted case that the applicant
took Rs.60 lacs from complainant to sell his property and in default,
applicant issued disputed cheques and signed over the cheques, which got
dishonoured, thereafter, statutory demand notice was served upon
applicant and applicant filed objection before trial court where applicant
has not disputed signature over the cheque. Learned Magistrate
considered the objection of the applicant and also averment regarding lost
of cheques. On perusal of complaint and other material evidence, prima
facie, offence U/s 138 of N.I. Act is made out against the applicant. The
order dated 12.01.2026 passed by Learned Civil Judge (S.D.)/F.T.C.,
Chitrakoot in Complaint Case No. 4036 of 2025, under section 138 of
Negotiable Instruments Act at Police Station Karwi, District
Chitrakoot, is just and proper. No interference is warranted.

7. The Hon. Apex Court in Sri Om Sales Vs. Abhay Kumar @ Abhay
Patel and Another reported in 2025 SCC OnLine SC 2897 has
considered following judgments:

"14. In Maruti Udyog Ltd. v. Narender and others, this Court held that a presumption
must be drawn that the holder of the cheque received the cheque of the nature referred
to in Section 138, for the discharge of any debt or other liability unless the contrary is
proved and, therefore, the High Court was not justified in entertaining and accepting
the plea of the accused at the initial stage of the proceedings and quash the complaint.

15. Likewise, in Rangappa v. Sri Mohan, it was held that the presumption mandated
by Section 139 of the N.I. Act includes the existence of a legally enforceable debt or
liability. It was observed that such a presumption is rebuttable, and the accused must
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raise its defense in the trial.

16. In Rajeshbhai Muljibhai Patel v. State of Gujarat, it was held that the High Court
should not quash the criminal complaint under Section 138 of N.I. Act by going into
disputed questions of fact regarding the cheque in question being issued for the
discharge of debt or liability. Moreso, when Section 139 of the N.I. Act raises a
statutory presumption as regards the cheque being issued for discharge of debt or
liability."

8. In Rathish Babu Unnikrishnan v. State (NCT of Delhi), this Court
held that when there is a legal presumption under Section 139 of N.I. Act,
it would not be judicious to carry out a detailed enquiry on a disputed
question of fact at a pre-trial stage to quash the complaint. The relevant
observations in the judgment are extracted below:

"17. The proposition of law as set out above makes it abundantly clear that the court
should be slow to grant the relief of quashing a complaint at a pre-trial stage, when
the factual controversy is in the realm of possibility particularly because of the legal
presumption, as in this matter. What is also of note is that the factual defense without
having to adduce any evidence need to be of an unimpeachable quality, so as to
altogether disprove the allegations made in the complaint.

18. The consequences of scuttling the criminal process at a pretrial stage can be grave
and irreparable. Quashing proceedings at preliminary stages will result in finality
without the parties having had an opportunity to adduce evidence and the
consequence then is that the proper forum i.e., the trial court is ousted from weighing
the material evidence. If this is allowed, the accused may be given an unmerited
advantage in the criminal process. Also, because of the legal presumption, when the
cheque and the signature are not disputed by the appellant, the balance of
convenience at this stage is in favor of the complainant / prosecution, as the accused
will have the opportunity to adduce defense evidence during the trial, to rebut the
presumption.

19. Situated thus, to non-suit the complainant, at the stage of the summoning order,
when the factual controversy is yet to be canvassed and considered by the trial court
will not in our opinion be judicious. Based upon a prima facie impression, an element
of criminality cannot entirely be ruled out here subject to the determination by the
trial court. Therefore, when the proceedings are at a nascent stage, scuttling of the
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                                    criminal process is not merited."

                                    9. The Hon. Apex Court while deciding aforementioned case, in
                                    paragraphs 13 and 18 has observed that:

                                    "13. However, the High Court, in its jurisdiction under Section 482, proceeded to test
                                    whether the cheque was issued for the discharge, in whole or in part, of any debt or
                                    other liability. In our view, such an exercise was unwarranted because, under Section
                                    139 of the N.I. Act, there is a presumption that the holder of a cheque received the
                                    cheque of the nature referred to in Section 138 for the discharge, in whole or in part,
                                    of any debt or other liability. This presumption can be rebutted by evidence led in
                                    trial. A fortiori, the said issue can appropriately be decided either at the trial, or later,
                                    upon conclusion of trial, by the appellate/ revisional court."

                                    "18. Having regard to the aforesaid decisions of this Court as also the provisions of
                                    Section 139 of the N.I. Act, we are of the considered view that the High Court
                                    committed an error by conducting a roving enquiry, at the pre-trial stage, as regards
                                    the cheque being issued for the discharge of debt or liability. Such an exercise, in our
                                    view, was not merited in exercise of power under Section 482 of the Code more so
                                    when the complaint allegations disclosed that the cheque was issued for discharge of
                                    liability. As fulfillment of the necessary ingredients of Section 138 N.I. Act are prima
                                    facie made out from the complaint allegations, in our view, neither the summoning
                                    order nor the complaint could have been quashed by the High Court at the pre-trial
                                    stage."

                                    10. In view of the Apex Court's Judgment, no interference is warranted by
                                    this Court. The present application is, accordingly, dismissed.



                                                                                                        (Deepak Verma,J.)
                                    May 7, 2026
                                    Nitin Verma




Digitally signed by :-
NITIN KUMAR VERMA
High Court of Judicature at Allahabad