Allahabad High Court
Anil Kumar Dubey vs State Of U.P. And Another on 23 April, 2026
Author: Deepak Verma
Bench: Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:91014
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 14782 of 2026
Anil Kumar Dubey
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Jitendra Kumar Srivastava
Counsel for Opposite Party(s)
:
G.A.
Court No. - 74
HON'BLE DEEPAK VERMA, J.
1. Heard counsel for the applicant and learned AGA for the State.
2. The present 528 B.N.S.S. application has been filed to quash the impugned summoning order dated 15.03.2024 passed by Civil Judge (Junior Division), Sant Kabir Nagar as well as entire proceedings in Complaint Case No.8600 of 2023 (Hemant Kumar Gupta vs. Anil Kumar Dubey), under Section 138 N.I.Act, Police Station Mehdawal, District Sant Kabir Nagar.
3. Learned counsel for the applicant submits that the present complaint is defective and is not maintainable as from perusal of complaint, it is apparent that the applicant has not mentioned that on which date notice given to the applicant. It is next submitted that whole proceeding against the applicant is malice prosecution and is liable to be set aside. It is alleged in the complaint that the applicant borrowed money from opposite party no.2 to sale the property. Thereafter, he is not executed the sale deed in favour of the applicant. Applicant has not returned the amount. Thereafter amount was returned through Cheque No.656975 and same was presented before the Bank and the same was dishonoured. Then statutory notice was issued to applicant.
4. Per contra, learned A.G.A. opposed the submission raised by learned counsel for the applicants and submitted that argument raised by learned counsel for the applicant are disputed questions of fact.
5. Considered the argument raised by learned counsel for the applicant and perused the record. From perusal of documents and record, it is apparent that accused is being examined before the trial court and proceeding before the trial court is on the verge of conclusion. Applicant has remedy to raise objection before trial court. Trial court has ample power to examine the documents and evidence produced by the applicant. Application u/s 528 B.N.S.S. filed by the applicant is at belated stage. All submission raised here by the applicant can be raised before the trial court and trial court has power to examine the same. Submission raised by learned counsel for the applicant in regard to that opposite party no.2 is money lender and has filed various complaint against the applicant and other person, is matter of fact, which cannot be adjudicated at this stage.
6. 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.
17. 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.""
7. 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."
8. 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 23, 2026 SKD