RAJENDRA PRASAD SHARMAversusSTATE OF U.P. AND ANOTHER

          HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 49587 of 2025

Rajendra Prasad Sharma
                                                             .....Applicant(s)
                                    Versus

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

Counsel for Applicant(s)                     :   Mohd. Asim Zulfiquar
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 as
also perused the record.
2. Instant application has been filed to quash the impugned order date
09.05.2024 passed by the Additional Chief Judicial Magistrate, Court
No.2, Agra as well as entire proceeding of complaint case no. 523/2019
"Smt. Asha Devi vs Rajendra Prasad Sharma" u/s 138 N.I. Act, P.S. Hari
Parvat, District Agra.
3. Learned counsel for the applicant submits that Opposite Party No. 2, by
way of the present complaint under Section 138 of the Negotiable
Instruments Act, has alleged that the applicant issued a cheque for an
amount of Rs.3,00,000. Upon presentation of the said cheque in the bank,
it was dishonoured with the remark “insufficient funds.” Thereafter, a
statutory notice was issued to the applicant, and subsequently, the
complaint was filed. It is further submitted that the applicant appeared
before the trial court and filed objections on two grounds. Firstly, that the
legal notice was sent on 11.06.2019 and was received by the applicant on
13.06.2019. The statutory period of one month from the date of receipt of
notice expired on 14.07.2019; however, the complainant filed the
complaint on 10.07.2019, i.e., prior to the expiry of the prescribed period.
Therefore, the complaint is premature and not maintainable in the eyes of
law. Secondly, that the cheque in question is dated 20/01/2019, though
there appears to be an alteration in the month. As per the said date, the
validity period of three months expired on 20/04/2019; however, the
cheque was presented on 04/05/2019, beyond the prescribed period,
                                                              NA528 No. 49587 of 2025
                                   2

rendering it invalid for enforcement. It is further submitted that the
complainant incorrectly mentioned the cheque date in the notice, thereby
creating inconsistency. On merits, it is argued that the cheque was issued
conditionally towards consideration for a plot, with an understanding that
it would be encashed only after execution of the sale deed. The
complainant allegedly failed to execute the sale deed and prematurely
presented the cheque without notice to the applicant. Learned Magistrate
without considering the objection of the applicant, in ordinary manner
rejected the objection of the applicant on the ground that in view of
Adalat Prasad vs. Roop Lal Jindal and others, 2004 (II) Supreme
Court Cases (Cr.) 1927=2005 passed by Hon'ble Apex Court with
observation that after summoning under Section 204 Cr.P.C., the
Court/magistrate has no power to recall the same. He also observed that
after considering the judgement of High Court Allahabad in the case of
Amit Singh vs. State of Uttar Pradesh and Others, 2013 (1) J.I.C.
2017 Allahabad that discharge under Sections 249, 258, 262, 265 Cr.P.C.
is not maintainable. Learned counsel for the applicant lastly submitted
that without going into merit of the case and considering the facts,
rejected the objection filed by the applicant. Learned counsel for the
applicant placed reliance on the judgement of Honble Apex Court in
Bhushan Kumar and Another vs. State (NCT of Delhi) and Another,
AIR 2012 Supreme Court 1747 and the relevant paragraph No.17 is
quoted as under:

     "17) It is inherent in Section 251 of the Code that when an accused
     appears before the trial Court pursuant to summons issued under Section
     204 of the Code in a summons trial case, it is the bounden duty of the trial
     Court to carefully go through the allegations made in the charge sheet or
     complaint and consider the evidence to come to a conclusion whether or
     not, commission of any offence is disclosed and if the answer is in the
     affirmative, the Magistrate shall explain the substance of the accusation
     to the accused and ask him whether he pleads guilty otherwise, he is
     bound to discharge the accused as per Section 239 of the Code."

5. Learned counsel for the applicant further place reliance on the
judgement of Delhi High Court in Arvind Kejriwal and other vs. Amit
Sibal and Another, (2014) 1 High Court Cases (Del) 719 and relevant
                                                               NA528 No. 49587 of 2025
                                    3

paragraph No.8 is quoted as under:-

     "8. It is no doubt true that Apex Court in Adalat Prasad Vs. Rooplal
     Jindal and Ors. (2004) 7 SCC 338 has ruled that there cannot be
     recalling of summoning order, but seen in the backdrop of decisions of
     Apex Court in Bhushan Kumar and Krishan Kumar (supra), aforesaid
     decision cannot be misconstrued to mean that once summoning order has
     been issued, then trial must follow. If it was to be so, then what is the
     purpose of hearing accused at the stage of framing Notice un-der Section
     251 of Cr.P.C. In the considered opinion of this Court. Apex Court's
     decision in Adalat Prasad (supra) cannot possibly be misread to mean
     that pro-ceedings in a summons complaint case cannot be dropped
     against an accused at the stage of framing of Notice under Section 251 of
     Cr.P.C. even if a prima facie case is not made out. In the aforesaid view,
     this petition and the application are disposed of without commenting
     upon the merits of this case and with liberty to petitioner to urge the pleas
     taken herein before the trial court. Needless to say, the pleas raised by
     petitioner at the hearing on the point of Notice under Section 251 pleas
     raised by petitioner at the hearing on the point of Notice under
     Section251 of Cr.P.C. shall be dealt with by the trial court by passing a
     reasoned order so that petitioner may avail of the remedies available in
     law, if need be. Since the plea pertaining to Section 305 of Cr.P.C. goes
     to the root of this matter, therefore, till the hearing on the point of Notice
     under Section 251 of Cr.P.C. is concluded by the trial court, personal
     appearance of petitioner before the trial court is dis-pensed with provided
     petitioner is duly represented by counsel, who does not seek
     adjournment."

6. Learned counsel for the applicant placed reliance on the judgement
Hon'ble Supreme Court in the case of Kaveri Plastics vs. Mahdoom
Bawa Bahrudeen Noorul, 2025 INSC 1133 and relevant paragraph
No.8.1 is quoted as under:-

     "8.1 A failure in above regard, namely when the cheque amount is not
     mentioned in the Proviso (b) notice or the amount different than the
     actual cheque amount is mentioned, in the notice, such notice would stand
     invalid in eye of law. The notice in terms of Proviso (b) being a provision
                                                               NA528 No. 49587 of 2025
                                    4


     in penal statute and a condition for the offence, it has to be precise while
     mentioning of the amount of the cheque which is dishonoured. Even if the
     cheque details are mentioned in the notice but corresponding amount of
     cheque is not correctly mentioned, it would not bring in law the validity
     for such notice. Here the principle of reading of notice as a whole is
     inapplicable and irrelevant. Any elasticity cannot be adopted in the
     interpretation. It has to be given technical interpretation."

7. Learned counsel for the applicant lastly submitted that complaint was
lodged in regard to cheque issued for amount of Rs.3 lacs whereas
demand notice was issued from the applicant for amount of Rs.20 lacs. In
view of the judgement of Hon'ble Apex Court in paragraph No.8.1,
complaint is not maintainable and is liable to the set aside.
5. 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.
6. Heard learned counsel for the parties and considered the arguments
advanced by learned counsel for the applicant. The present application
has been filed against the order dated 09.05.2024, whereby the objections
filed by the applicant before the trial court on two grounds, namely, (i)
that the date mentioned on the cheque is interpolated and shown as
20.01.2019, with validity up to 20.04.2019, and (ii) that the present
complaint is premature, having been filed before completion of the
prescribed statutory period, were rejected. It is noteworthy that the
applicant did not raise any objection before the trial court to the effect that
the cheque was issued for Rs.3,00,000, whereas the demand notice was
issued for Rs.20,00,000. The learned Magistrate, after considering the
objections, has categorically recorded a finding that the objection with
regard to interpolation in the cheque cannot be examined at this stage, as
it requires evidence. The court has further observed that, in view of the
judgment in Adalat Prasad vs. Roop Lal Jindal and Others (supra), the
Magistrate has no power to recall the summoning order. Since the
applicant had the opportunity to raise all objections before the trial court
but failed to raise the objection regarding the alleged excess demand in
the notice, and has now raised the same for the first time in the present
application under Section 528 BNS, such a plea cannot be entertained at
                                                                                           NA528 No. 49587 of 2025
                                                                   5

                                    this stage. From the record, it is also apparent that summons had been
                                    issued against the accused/applicant by order dated 2.9.2019, the
                                    applicant did not appear before trial court till 9.8.2023. Since, 2.9.2019 to
                                    9.8.2023, applicant avoided trial proceedings and delayed the present
                                    proceeding, trial court issued bailable warrants and non bailable warrants.
                                    Thereafter, also started proceedings under Section 82 and 83 Cr.P.C. The
                                    applicant on 19.8.2023 surrendered. The act of the applicant cannot be
                                    appreciated, which shows malice intention only to delay the proceeding.
                                    The argument raised by counsel for the applicant are mostly in regard to
                                    disputed questions of facts. Applicant and complainant have right to
                                    produce evidence that will be evaluated by the trial court. The order
                                    passed by the learned Magistrate is just and proper and does not suffer
                                    from any illegality or infirmity. Accordingly, no interference is required.

                                    7. In view of aforesaid, no interference is warranted by this Court. The
                                    present application is, accordingly, dismissed.



                                                                                            (Deepak Verma,J.)
                                    March 18, 2026
                                    KJ




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