SMT. ANURADHAversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 28233 of 2025

Smt. Anuradha
                                                               .....Applicant(s)
                                    Versus

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

Counsel for Applicant(s)                     :    Ajay Kumar Mishra
Counsel for Opposite Party(s)                :    G.A.

Court No. - 73
                      HON'BLE DEEPAK VERMA, J.

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

2. The present 528 B.N.S.S. application has been filed to set aside the
impugned Summoning order dated 03.07.2024 passed by learned Additional
Civil Judge (J.D.) 1st/J.M., Hapur in Complaint No.239/2024 (Joni Tyagi
versus Smt. Anuradha) U/s 138 N.I. Act, Police Station Hapur Nagar,
District-Hapur, Pending before learned Civil Judge (J.D.) FTC-I/J.M.,
Hapur.

3. It is alleged in the complaint that the applicant’s husband and opposite
party no. 2 were friends. After the death of the applicant’s husband, the
applicant allegedly borrowed money from opposite party no. 2. Upon
demand for repayment, the applicant issued a cheque of Rs. 5 lakhs to
opposite party no. 2. When the said cheque was presented for encashment, it
was dishonoured by the bank with the remark “insufficient funds.”

4. Learned counsel for the applicant submits that the applicant is innocent
and has been falsely implicated in the present case. It is contended that the
applicant never borrowed money from opposite party no. 2. It is further
submitted that since the applicant’s husband and opposite party no. 2 were
friends, opposite party no. 2 used to visit her house frequently, and during
one such visit, he allegedly stole the cheque and misused it. It is argued that,
upon perusal of the material evidence on record, no offence under the
alleged sections is made out, and the present complaint has been filed with
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malicious intent.

5. Learned A.G.A. has vehemently opposed the prayer made by the
applicant.

6. The submissions raised by learned counsel for the applicant involve
disputed questions of fact, namely whether opposite party no. 2 stole cheque
and misused by presenting the same before bank. The cheque was issued by
the applicant’s husband to opposite party no. 2 and after death, opposite
party misused the cheque. The contention that the applicant never issued the
cheque or that the cheque does not bear her signature are fact related matters
that require evidentiary examination. The contents of complaint explicit that
cheque is issued by the applicant and there is signature of the applicant on
the cheque. In view of Section 139 of Negotiation Instruments Act,
presumption is against the applicant. Moreover, such disputed questions of
fact cannot be adjudicated at this stage while exercising power under Section
528 BNSS jurisdiction. Considering the facts and circumstances of the case,
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
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
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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.""

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

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




                                                                                                        (Deepak Verma,J.)
                                    March 19, 2026
                                    KJ




Digitally signed by :-
KAMARJAHAN ANSARI
High Court of Judicature at Allahabad