KAMLESH KUMARversusSTATE OF U.P. THROUGH SECRETARY DEPARTMENT OF HOME AND ANOTHER

          HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 36572 of 2026

Kamlesh Kumar
                                                                   .....Applicant(s)
                                       Versus

State Of U.P. Through Secretary Department Of
Home And Another                                                       .....Opposite
                                                                             Party(s)

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

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

1. Heard Mr. Yogesh Singh, learned counsel for the applicant and learned
A.G.A. representing the State.

2. 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 allow this application Under Section 528 B.N.S.S. and to quash/set aside
the order dated 29-06-2026, passed by Learned Additional Chief Judicial Magistrate,
Court No.8, District Varanasi, as well as the summoning order dated 03-02-2023
passed by Learned Additional Civil Judge (J.D.) F.T.C.- 01, Varanasi, in Cri.
Complaint case no. 146176 of 2022 as well as the entire proceedings of Cri.
Complaint case no. 146176 of 2022 (Chandra Prakash Singh Vs. Kamlesh Kumar)
pending in the court of Learned Additional Chief Judicial Magistrate, Court No.8,
District Varanasi, U/S 138 of Negotiable Instruments Act, 1881, Police Station Sigra,
District Varanasi.

It is further prayed that this Hon'ble Court may kindly be pleased to stay the further
proceedings of Cri. Complaint case no. 146176 of 2022 (Chandra Prakash Singh Vs.
Kamlesh Kumar) pending in the court of Learned Additional Chief Judicial
Magistrate, Court No.8, District Varanasi, U/S 138 of Negotiable Instruments Act,
1881, Police Station Sigra, District Varanasi, during the pendency of present case
before this Hon'ble Court.

                                         Or
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May pass such other and further order or direction as this Hon'ble Court may deem fit
and proper in the facts and circumstances of the case."

3. Learned counsel for the applicant submits that opposite party No.
2/complainant has maliciously instituted the aforesaid complaint under
Section 138 N.I. Act based on four cheques: (i) Cheque No. 377680 of the
State Bank of India for Rs. 40,000/-; (ii) Cheque No. 377670 of the State
Bank of India for Rs. 10,000/- (which was never presented before the bank
nor ever dishonored); (iii) Cheque No. 005155 of Allahabad Bank for Rs.
1,50,000/-; and (iv) Cheque No. 005154 of Allahabad Bank of Rs. 1,00,000/-
(both of which were returned as invalid as Allahabad Bank merged with
Indian Bank). The merger of the Allahabad Bank into Indian Bank took
place in the year 2020 and a time limit was fixed after which those invalid
cheques of Allahabad Bank could not be presented before the bank. That
time limit was 30.09.2021. All the four above-mentioned cheques were
presented in the year 2022 as per the complaint. The cheques of Allahabad
Bank which were invalid were also presented along with the cheque of State
Bank of India amounting to Rs. 40,000/-. The cheque amounting to Rs.
10,000/- was never presented before the bank and was never dishonored.
Hence the accused-applicant is only liable to the extent of issuing the alleged
cheque amounting to Rs. 40,000/-, which was the cheque of State Bank of
India bearing No. 377680.

4. Learned counsel for the accused-applicant also drew the attention of this
Court on the order passed by the coordinate Bench of this Court dated
09.03.2026 in Application U/s 528 B.N.S.S. No. 9119 of 2026, by which the
coordinate Bench directed the applicant-Kamlesh Kumar to appear before
the learned trial court for compounding of the offence through compromise.
In compliance of the said order of the coordinate Bench, the accused-
applicant filed an application dated 31.03.2026 before the learned trial court
by which he prayed that he is ready to compound the offence regarding
Cheque No. 377680 amounting to Rs. 40,000/- dated 06.06.2022, but the
learned trial court, vide its impugned order dated 29.06.2026, has held that
the learned trial court lacks jurisdiction to recall the summoning order dated
03.02.2023 and directed the applicant-Kamlesh Kumar to deposit 10% of the
total amount of all the four cheques (Rs, 3,00,000/-), and to hand it over to
the complainant and file compromise in that regard.
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5. Section 138 N.I. Act clearly postulates that if any invalid cheque is
presented before the Bank and the same was dishonored, then there is no
liability under Section 138 N.I. Act. In the instant case two cheques of
Allahabad Bank were allegedly issued by the accused-applicant after
30.09.2021, i.e. after the merger of Allahabad Bank into the Indian Bank.
Therefore, dishonoring of both the cheques of Allahabad Bank bearing Nos.
005155    amounting      to Rs.   1,50,000/- and 005154 amounting      to   Rs.
1,00,000/- does not come within the purview of Section 138 N.I. Act. The
cheque amounting to Rs. 10,000/- of the State Bank of India bearing No.
377670 was never dishonored by the bank as it was never presented, would
also not come within the ambit of Section 138 N.I. Act.

6. Learned A.G.A. could not dispute the contentions raised by the learned
counsel for the applicant.

7. In view of the above, interference of this Court in the summoning order
dated 03.02.2023 and the order dated 29.06.2026, passed by the learned trial
court concerned, is required.

8. Accordingly, summoning order dated 03.02.2023 and impugned order
dated 29.06.2026 are hereby set aside to the extent of above observations,
regarding dishonour of Cheque Nos. 377670, 005155 and 005154 amounting
to Rs. 10,000/-, Rs. 1,50,000/- and Rs. 1,00,000/- respectively. The trial
court may proceed with the matter regarding dishonor of Cheque No.
377680 of State Bank of India, dated 06.06.2022 amounting to Rs. 40,000/-
against the applicant.

9. It is directed that the accused-applicant may appear before the learned trial
court concerned within a period of one month from today through his
counsel and move an application seeking compounding of the offence
through compromise and deposit 10% of the cheque amount (Rs. 4,000/-).

10. Till then, no coercive measures shall be adopted by the learned trial court
concerned against the applicant in the aforesaid case.

11. If the accused-applicant does not appear before the learned trial court
concerned for compounding of the offence through compromise, then he will
be required to appear and face the trial and the court concerned shall be at
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                                    liberty to proceed in accordance with law against the accused-applicant and
                                    take all necessary steps and measures to procure his attendance as the law
                                    permits.

                                    12. With the aforesaid observations and directions, the instant application
                                    stands disposed of.



                                                                                       (Prashant Mishra-I,J.)
                                    September 24, 2026
                                    Kashifa




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