GAJENDRA YADAVversusSTATE OF U.P. AND ANOTHER

          HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 3400 of 2026

Gajendra Yadav
                                                                     .....Applicant(s)
                                         Versus

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

Counsel for Applicant(s)                   :   Piyush Patel, Pradeep Kumar
Counsel for Opposite Party(s)              :   G.A.

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

1. Supplementary affidavit, filed today, is taken on record.


2. Heard Sri Piyush Patel, learned counsel for the applicant and learned AGA for the
State.


3. The present 528 BNSS application has been filed to quash the entire criminal
proceeding of complaint case no.5823 of 2023 (Madan Yadav Vs. Gajendra Yadav)
under section 138 Negotiable Instruments Act, Police Station- Nichlaul, District-
Maharajganj as well as summoning order dated 10.05.2024, pending in the court of
learned Additional Chief Judicial Magistrate/Civil Judge (S/D) Maharajganj.


4. Counsel for the applicant submits that it is alleged in the complaint that applicant
opened a bank account on the request of complainant in Grahak Seva Kendra, after
collecting the money, he deposited the collected amount in the account and thereafter,
transferred the amount to the family members, thereafter, applicant handed over the
cheque for amount Rs.14 lacs and when complainant deposited the amount in the
bank, the same was dishonored. He further submitted that no offence under the alleged
sections is made out against the applicant. Allegation in the complaint is false and
baseless and not supported by any evidence. There is no occasion to issue the cheque
in favour of opposite party no.2/complainant. By supplementary affidavit, it is
submitted that applicant's cheque was lost and in this regard he lodged an FIR and as
per statement of independent witnesses, they disclosed the name of opposite party
No.2. Cognizance and summoning by learned Magistrate is without application of
judicial mind. Whole proceedings against the applicant is liable to be set aside.


5. Per contra, learned A.G.A. opposed the submission raised by applicant's counsel
and submitted that the submission raised by applicant's counsel, are disputed question
of facts, which cannot be entertained at this stage. Moreover, FIR lodged after lodging
of the complaint by opposite party no.2.


6. 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, it is admitted case that the cheque has been issued by the applicant in
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favour of opposite party No.2 and when cheque was presented before bank the same
was returned with observation that "account closed". The intention of applicant since
beginning was mischievous only to cheat to complainant the cheque has been issued.
On perusal of order sheet, it is apparent that accused version has been recorded and
case was posted on 29.07.2025 for framing of charges but non appearance of
applicant, charge could not be framed. Allegation alleged in the complaint is under the
139 of N.I. Act, as such, prima facie, offence is made out against the applicant. The
order impugned is just and proper. 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
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."


8. 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
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                                    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."


                                    9. 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."


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



                                                                                                        (Deepak Verma,J.)
                                    April 20, 2026
                                    Nitin Verma




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