M/S AVAN ELASTOMERS INDIAversusSTATE OF U.P. AND ANOTHER

    HIGH COURT OF JUDICATURE AT ALLAHABAD
         APPLICATION U/S 528 BNSS No. - 12360 of 2026

M/S Avan Elastomers India
                                                .....Applicant(s)
                             Versus

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

Counsel for Applicant(s)      : Gaurav Srivastav,        Rajesh
                                Kumar Srivastava
Counsel for Opposite Party(s) : G.A.

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

1. Heard Sri Rajesh Kumar Srivastava, learned counsel for the
applicant and Sri P. P. Pandey, learned AGA for the State.

2. The present 528 BNSS application has been filed to quash
the Impugned summoning Order dated 11.07.2023 passed by
Additional Civil Judge (Junior Division) Court No. 4, Agra in
Complaint Case No. 17800 of 2023 (Pravesh Kumar Banvani
Vs. M/s Avan Elastomers India Limited and others) u/s 138 NI
Act, Police Station Hariparwat, District Agra.

3. Counsel for the applicant submits that applicant has returned
amount of Rs.1,81,000/- before lodging of the complaint but
the same has not been disclosed in the complaint. Instant
complaint has been lodged with malice intention.

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

5. 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,
learned Magistrate after considering the contents of complaint,
has issued notice/summon against the applicant. Prima facie,
offence is made out against the applicant. The order impugned
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is just and proper.

6. 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 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."

7. 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
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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
criminal process is not merited."

8. 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
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                                        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."

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

                                        May 18, 2026
                                        Nitin Verma

                                                                                          (Deepak Verma,J.)




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