VIJAY ANAND PRJAPATIversusSTATE OF U.P. AND ANOTHER

        HIGH COURT OF JUDICATURE AT ALLAHABAD

          APPLICATION U/S 528 BNSS No. - 17399 of 2026



Vijay Anand Prjapati
                                                           .....Applicant(s)
                                 Versus
State of U.P. and Another
                                                              .....Opposite
                                                                    Party(s)

Counsel for Applicant(s)                  :   Satya Prakash Chaturvedi
Counsel for Opposite Party(s)             :   G.A.

Court No. - 74


                   HON'BLE DEEPAK VERMA, J.

1. Heard counsel for the applicant and learned AGA for the State.


2. The present 528 B.N.S.S. application has been filed to quash the
impugned summoning order dated 24.01.2024 passed by learned court of
Civil Judge, C.D./F.T.C. Jalaun at Orai in Complaint Case No.9427 of
2023 (Aashish Mishra vs. Vijay Anand Prajapati), under Section 138
N.I.Act, Police Station Kotwali Orai, District Jalaun, pending before
learned court of Civil Judge, C.D./F.T.C. Jalaun at Orai.

3. Learned counsel for the applicant submits that present proceeding
under section 138 N.I.Act is malice prosecution only to harass the
applicant. Applicant never issued cheque in favour of opposite party no.2.
Applicant is Assistant Teacher/Shiksha Mitra. Allegation made in the
complaint is that applicant asked for a loan of Rs.7,00,000/- from the
complainant/opposite party no.2 for his personal needs and promised to
return it after sometime, on which the complainant gave Rs.7,00,000/- in
cash to the applicant. The applicant gave a cheque signed by him to the
complainant/opposite party no.2 and the said cheque deposited in the
Bank to get the payment. On which the cheque was returned by the bank
on 25.09.2023 with remark of 'Kindly contract Drawer, Drawee Bank and
present again'. Then opposite party no.2 sent registered notice to the
applicant which was returned by the applicant in collusion with the
postman. It cannot be presumed that the applicant, who is Assistant
Teacher can provide Rs.7,00,000/- cash. No whisper as to how he has
collected huge amount of Rs.7,00,000/-. He next submitted that there is
no mention in regard to service of registered notice sent by opposite party
                                                        NA528 No. 17399 of 2026
                              2

no.2 to the applicant, as such, prima-facie present complaint is not
maintainable.


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


5. Considered the argument raised by learned counsel for the applicant
and perused the record. From the complaint, it is apparent that the
applicant after receiving information of Bank that cheque has been
dishonoured and returned to the opposite party no.2, the opposite party
no.2 informed the applicant through registered notice dated 11.10.2023
and same was returned in collusion with the postman. Prima-facie the
condition for summoning the accused applicant is prima-facie made out
as applicant endorsed the signature given to opposite party no.2 and then
it was presented before the bank and same was returned by the Bank by
registered post, notice was given to the applicant. Prima-facie offence is
made out under aforesaid section and other submission raised by learned
counsel for the applicant are disputed question of facts. Applicant has
remedy to raise objection before trial court and same shall be considered
and examined by the trial court. Cognizance and summoning by learned
magistrate 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
                                                          NA528 No. 17399 of 2026
                               3

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.


17. 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
criminal process is not merited.""

7. 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
                                                                                              NA528 No. 17399 of 2026
                                                                     4

                                        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."

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



                                        April 29, 2026
                                        SKD
                                                                                             (Deepak Verma,J.)




Digitally signed by :-
SURJIT KUMAR DEY
High Court of Judicature at Allahabad