Allahabad High Court
Juhi Sharma vs State Of U.P. And Another on 27 April, 2026
Author: Deepak Verma
Bench: Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:93866
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 118 of 2026
Juhi Sharma
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Sanjay Kumar Dwivedi
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 Sanjay Kumar Dwivedi, learned counsel for the applicant, learned A.G.A. for the State.
3. The present 528 B.N.S.S. application has been filed to quash the summoning order dated 23-09-2025 passed by Judicial Magistrate/Additional Judicial Magistrate (J.D.), Court No.6, Agra, arising in Complaint Case no. 15867 of 2024, U/s 138 N.I. Act Police Station- Hari Parwat, District- Agra.
4. Counsel for the applicant submits that it is alleged in the complaint that applicant borrowed money of Rs.7 lacs from opposite party No.2, who is close relative of applicant, in return, applicant issued cheque bearing No.024827 dated 03.06.2024 for the said amount in favour of opposite party no.2, when the cheque was presented before Bank, the same got dishonoured on 10.06.2024 with remark "Fund insufficient", thereafter, registered notice was issued to applicant but applicant did not return the said amount, hence, the present complaint has been lodged. He further submits that applicant is innocent and has been falsely implicated in the present case due to mala fide intention. No occasion has been shown in the complaint that under what circumstances applicant had borrowed money. Learned Magistrate U/s 223 proviso clause issued notice to applicant. Applicant has filed objection before trial court and trial court without considering objection has issued summon against the applicant. Applicant has specifically stated in his objection that applicant has not issued the cheque.
5. Per contra, learned A.G.A. opposed the submission raised by applicant's counsel.
6. Considering the argument raised by applicant's counsel, the submission raised by applicant's counsel are disputed questions of fact which cannot be examined at this stage. Applicant's counsel submission regarding objection filed before trial court and trial court without considering objection issued summon in arbitrary manner. The act U/s 138 of N.I. Act is summary proceeding and in view of Hon'ble Apex Court observation, no prior notice before taking cognizance to accused is required, U/s 223 proviso clause. The view of this Court is that if notice was issued against accused person and objection had been filed the court has only to see on perusal of complaint, prima facie, case is made out or not, whether cheque has been issued by the applicant and the same was filed in the bank in time and after dishonor, statutory notice was issued in time and the same was served upon applicant, thereafter, in statutory period complaint has been lodged. Since, complaint has been filed under the provision of N.I. Act and prima facie, offence is made out against the applicant, as such, no interference is warranted. The order impugned is just and proper.
7. In view of the provision U/s 139 of N.I. Act, presumption is against the applicant and the liability shifted upon accused to prove his case and that can be decided only before trial court. In view of the aforesaid, no interference is warranted. The order impugned, herein, is just and proper.
8. The Hon. Apex Court in Renuka Vs. The State of Maharashtra and Another 2026 INSC 327, has held that the learned Magistrate has to see, before issuance of process, whether, prima facie, case is made out, the cheque has been issued by the drawer in favour of the complainant, dishonoured on presentation by the payee, statutory notice has been issued and complaint has filed in the prescribed statutory period. The Hon. Apex Court in paragraphs 8-9 a in regard to adjudication of the disputed question of facts has held thus:
"8. It is to be borne in mind that at the stage of issuance of process by the learned Metropolitan Magistrate, what is prima facie required to be seen is the issuance of cheque by the drawer in favour of the complainant, its dishonour on presentation by the payee, issuance of statutory notice under Section 138 of the N.I. Act and filing of the complaint within the prescribed statutory period. If the drawer does not dispute issuance of such a cheque nor does he deny his signature on the dishonoured cheque, the statutory presumption as contemplated under Section 139 of the N.I. Act comes Into play. As a result, the burden would shift on the drawer of the cheque to prove that the cheque was not issued for any legally enforceable debt or liability. This exercise has to be undertaken during the trial either by relying upon the material brought on record by the complainant or by the drawer leading evidence In rebuttal. At the stage of issuance of process, the statutory presumption under Section 139 of the N.I. Act cannot be dislodged in a summary manner merely by contending that the cheque issued was not for any legally enforceable debt or liability.
9. We may in this regard refer to two decisions of this Court that have reiterated the view that once the basic ingredients of Section 138 of the N.I. Act are duly satisfied by the complainant, the rebuttal of statutory presumption by the drawer can only be made during the course of trial.
In Rangappa Vs. Sri Mohan", it has been explicitly reiterated that the presumption mandated by Section 139 of the N.I. Act Includes the presumption as regards existence of a legally enforceable debt or liability. It has been held that Section 139 is an example of a reverse onus clause that has been included in furtherance of the legislative object of improving the credibility of negotiable instruments. The presumption is rebuttable and the accused can raise a defence wherein the existence of a legally enforceable debt or liability can be contested.
In Rajesh Jain Vs. Ajay Singh, it has been heldas under.
34. The NI Art provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable Instrument was made or drawn for consideration. Section 139 of the Act stipulates that unless the contrary is proved, it shall be presumed that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. It will he seen that the prestaned fort directly relates to one of the crucial Ingredients necessary to sustain a conviction under Section 138.
35. Section 139 of the NI Act, which takes the firm of a shall ppresume clause is illustrative of a presumption of law. Because Section 139 requires that the Court shall presume the fact stated therein, it is obligatory in the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase unless the contrary is proved.?
36. The Court will necessarily presume that the cheque had been issued awards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. (Bharat Barrel Vs. Amin Chand) (1999) 3 SCC 35
38. As soon as the complaint discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption. In that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further."
9. 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."
10. 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."
11. 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."
12. 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 27, 2026 Nitin Verma