Allahabad High Court

MOHAN PRAKASHversusSTATE OF U.P. AND ANOTHER

Decided: 20 September 2026
Bench: PRASHANT MISHRA I

Holding

The High Court quashed the summoning order and directed the trial court to first decide the delay‑condonation application before proceeding with the complaint.

Summary

The applicant, Mohan Prakash, filed an application under Section 528 of the Code of Civil Procedure seeking to quash a summoning order dated 02‑08‑2025 issued in a complaint under Section 138 of the Negotiable Instruments Act. The applicant contended that the complaint was barred by limitation and that the trial court had ignored a delay‑condonation application filed on 08‑09‑2017. Relying on the Supreme Court’s decision in S. Nagesh v. Shobha S. Aradhya (2026 INSC 27), the High Court held that cognizance cannot be taken before the court is satisfied with the condonation of delay. The learned trial court had proceeded to summon the applicant without deciding the condonation application, violating the mandatory procedural requirement. Consequently, the High Court set aside the summoning order and directed the trial court to first decide the delay‑condonation application before proceeding with the complaint. The application under Section 528 was thereafter disposed of.

Issues considered

The trial court’s taking of cognizance of a Section 138 NI Act complaint without first deciding the delay‑condonation application.
Whether the summoning order dated 02‑08‑2025 is vitiated by procedural lapse under the law.
The applicability of the Supreme Court precedent S. Nagesh v. Shobha S. Aradhya to the present case.

Legislation cited

Code of Civil Procedure, 1908 — s. 528
Negotiable Instruments Act, 1881 — s. 138

Subjects

limitation
delay condonation
Section 138 NI Act
cognizance
summoning order
Section 528
procedural lapse
High Court

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 30341 of 2026

Mohan Prakash
.....Applicant(s)
Versus

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

Counsel for Applicant(s) : Bhanu Pratap Singh
Counsel for Opposite Party(s) : G.A.

Court No. - 84
HON'BLE PRASHANT MISHRA-I, J.

1. Supplementary affidavit filed by learned counsel for the applicant is
taken on record.

2. Heard Mr. Bhanu Pratap Singh, learned counsel for the applicant
and learned A.G.A. representing the State.

3. Prayer of the applicant in the instant application is quoted herein
below:

"It is, therefore most respectfully prayed that this Hon'ble court may kindly be
pleased to quash the Summoning Order dated 02.08.2025 (Annexure No.1) as
well as entire proceedings arising out of Complaint Case No. 8240 of 2017
(Annexure No.2) (Saraswati Industries Vs. Mohan Prakash) under Section 138
of Negotiable Instruments Act, Police Station-Kotwali Katra, District-Mirzapur,
Pending in the Court of Third Additional Civil Judge (Junior Division)/Judicial
Magistrate, Mirzapur.

It is further prayed that this Hon'ble Court may kindly be pleased to stay the
further proceedings of Complaint Case No.8240 of 2017 (Saraswati Industries
Vs. Mohan Prakash) under Section 138 of Negotiable Instruments Act, Police
Station-Kotwali Katra, District-Mirzapur, pending in the Court of Third
Additional Civil Judge (Junior Division)/Judicial Magistrate, Mirzapur, during
the pendency of present application before this Hon'ble Court.

And/or to pass such other and further order which this Hon'ble Court may
deem fit and proper in the circumstances of the case.
NA528 No. 30341 of 2026
2

4. Learned counsel for the accused-applicant submits that the
complaint filed by the complainant/opposite party No. 2 before the
learned trial court was barred by limitation and the complainant filed
delay condonation application dated 08.09.2017 before the learned
trial court along with the complaint, but the learned trial court without
taking into consideration the delay condonation application directly
proceeded with the complaint and summoned the accused-applicant
vide the impugned order dated 02.08.2025. Learned trial court has
not at all taken into consideration the delay condonation application
and this way the learned trial court has acted against the mandatory
provisions of the law.

5. Learned counsel for the applicant also relined upon the judgement
of the Hon'ble Supreme Court in the case of S. Nagesh Vs. Shobha
S. Aradhya, 2026 INSC 27, wherein the Hon'ble Supreme Court has
held that the power conferred upon the Court to take cognizance of a
belated complaint is subject to the complainant first satisfying the
Court that he had sufficient cause for not making the complaint within
time. The satisfaction in that regard, resulting in condonation of delay,
must therefore precede the act of taking cognizance. In paragraph
No. 15 of the said judgement, Hon'ble Apex Court has also held that
the learned Magistrate erred in taking cognizance of the respondent's
complaint under Section 138 N.I. Act, even before the delay of two
days in its presentation was condoned. Hon'ble Apex Court quashed
the order of the High Court in that regard.

6. Learned A.G.A. also conceded to the fact that the learned trial
court has not decided the delay condonation application and has
passed the impugned summoning order.

7. In view of the above and in the light of judgement of the Hon'ble
Supreme Court, as quoted above, the impugned summoning order
dated 02.08.2025, passed by the learned trial court in the aforesaid
case against the applicant, is not sustainable and is hereby set aside
.
NA528 No. 30341 of 2026
3

8. Learned trial court concerned is directed to first decide the delay
condonation application dated 08.09.2017 of the complainant, and
thereafter proceed with the aforesaid complaint in accordance with
law.

9. With the aforesaid directions, the instant application U/s 528
B.N.S.S. stands disposed of.

(Prashant Mishra-I,J.)
September 21, 2026
Kashifa

Digitally signed by :-
KASHIFA
High Court of Judicature at Allahabad

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