MULAversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 18624 of 2026

Mula
                                                           .....Applicant(s)
                                    Versus

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

Counsel for Applicant(s)                        :   Hitesh Pachori
Counsel for Opposite Party(s)                   :   G.A.

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

1. Heard learned counsel for the applicant; learned A.G.A for the State as
also perused the record.

2. Instant application has been filed to quash the summoning order dated
07.03.2026 as well as entire criminal proceedings of Complaint Case No.
25592/2024 [Suresh Chaudhary Vs. Mula), under Section 138 of
Negotiable Instrument Act, Police Station Trans Yamuna, District Agra,
pending in the Court of Additional Chief Judicial Magistrate, Court No.
05, Agra.

3. Counsel for the applicant submits that applicant is innocent and has
been falsely implicated in the present case. As per complaint, the
applicant borrowed Rs.4 lakh from the opposite party no. 2 in the year
2023, thereafter the applicant issued a cheque No.557137 of Rs.4 lakh
dated 26.08.2024 in favour of opposite party no. 2 and he put the thumb
impression which was found not matched and the cheque issued by the
applicant was dishonoured. Thereafter, the learned Magistrate issued
notice before taking cognizance against the applicant under Proviso to
Clause 1 of Section 223 of BNSS. The applicant filed objection and while
issuing summons, objection of the applicant has not been considered and
learned Magistrate in arbitrary manner issued notice.

4. Learned A.G.A. has vehemently opposed the prayer for quashing the
proceedings of the aforesaid case and has submitted that the order
impugned do not suffer from any illegality or infirmity.
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5. From perusal of the impugned order, it is apparent that the learned
Magistrate has passed the said order after perusing the material evidence
on record. The order impugned is just and proper and impugned order
does not suffer from any illegality and infirmity. The cognizance and
summoning by the court concerned is based upon material evidence
available on record. The objection of the applicant with regard to non
consideration by the learned Magistrate cannot be considered as notice
issued to the applicant under Proviso to Clause 1 of Section 223 of BNSS
was not mandatory in view of the judgment of Apex Court in Sanjabij
Tari Vs. Kishore S. Borcar and another 2025 SCC OnLine SC 2069. The
allegation alleged in the complaint in view of Section 139 of N.I. Act, it will
be presumed against the applicant. On perusal of complaint, it is apparent
that the applicant borrowed money in the year 2023 and to return that
amount, issued present disputed cheque and same was dishonoured on
account of mismatch of thumb impression. Prima facie, offence is made out
against the applicant. The objection raised by the applicant before the
learned Magistrate can be considered in the later stage after appearance
before the court in pursuance of summoning order. Before issuance of
summons, the learned Magistrate has to see whether prima facie offence is
made out or not. The submission raised by counsel for the applicant cannot
be examined at this stage. No interference is warranted at this stage.

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.
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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.

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.""
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                                    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 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.

                                    9. However, the applicant has remedy to raise objection before the learned
                                    court. If the applicant raise objection before the concerned court, the same
                                    shall be considered and decided, in accordance with law.



                                                                                                        (Deepak Verma,J.)
                                    May 6, 2026
                                    Meenu Singh




Digitally signed by :-
MEENU SINGH
High Court of Judicature at Allahabad