# Neeraj Jain v. State of U.P. & Anr

- **Citation:** (2024) 1 ILRA 884
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-12
- **Case number:** Application U/S 482. No. 2969 of 2016
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neeraj-jain-v-state-of-u-p-anr-50969
- **Pages:** 8

## Headnote

Criminal Law - Negotiable Instruments
Act, 1881 - Sections 138 & 139 - Code of
Criminal Procedure, 1973 - Section 482 -
Applicant challenged summoning order dated
24.09.2015 in Complaint Case No. 5972 of 2015
under Section 138 of NI Act, claiming cheque
was issued as security, not for discharge of
1 All. Neeraj Jain Vs. State of U.P. & Anr.
885
debt. Court held: (1) At summoning stage,
Magistrate need only assess prima facie case
based on complaint and materials; disputed
facts like cheque as security are for trial
(M.M.T.C. Ltd. Vs Medchl Chemicals and Pharma
Pvt. Ltd., (2002) 1 SCC 234). (2) Section 139
presumes
holder's
possession
of
cheque
indicates legally enforceable debt, rebuttable
during trial by accused (Rangappa Vs Sri Mohan,
(2010) 11 SCC 441). (3) Disputed questions of
fact
(e.g.,
cheque
purpose)
cannot
be
adjudicated under Section 482; quashing limited
to cases where no offence disclosed or abuse of
process (Rajeshbhai Muljibhai Patel Vs St. of
Guj., (2020) 3 SCC 794). (4) Complaint,
dishonor memo, and demand notice established
prima
facie
offence
under
Section
138;
applicant's security defence to be proved at trial.
(5) Vijay Kumar Upadhyay Vs St. of U.P. (2013
(1) ALL LJ 577) deemed per incuriam, as it
overlooked Section 139 presumption.

Application dismissed.

List of Cases cited:

## Text

884 INDIAN LAW REPORTS ALLAHABAD SERIES
amicably and they filed a suit for divorce
by mutual consent under Section 13B of the
Hindu Marriage Act. It is stated in the
coplaint that the opposite party no. 2 will
pay a sum of Rs. 12 lakh towards one time
settlement, out of which Rs. 5 lakh were
paid on the date of filing of the suit and the
balance amount of Rs. 7 lakh would be paid
on the date of final disposal of the suit.

10. It is also stated in the plaint that
the parties have returned some of the
articles given at the time of marriage to
each other and rest of the articles will be
exchanged before final decision of the suit.

11. The plaint further states that the
parities will get the proceedings instituted
by
them
against
each
other
closed
themselves.

12. The learned counsel for the
applicant has submitted that the applicant
had given a copy of the plaint under
Section 13B of the Hindu Marriage Act to
the Investigating Officer with a request to
close the investigation and submit a final
report but he did not accept the same and
submitted a charge sheet and the Court has
taken cognizance of the offence and
summoned opposite party nos. 2 to 5 to
face trial by means of the impugned order
dated 23.11.2023. The learned counsel for
the applicant has submitted that because of
the pendency of criminal cases, the
proceedings under Section 13B of the
Hindu Marriage Act, 1955 are not being
decided finally and the balance amount of
one time settlement is not being paid to the
applicant and some articles are also yet to
be exchanged between the parties before
final disposal of the suit.

13. As the prayer made in the
application is in favour of the opposite
party nos. 2 to 5 and it will not adversely
affect them, there is no need to issued
notice to the opposite party nos. 2 to 5 and
the notice is dispensed with.

14. In view of the aforesaid facts, the
application is allowed.

15.

The
charge
sheet
dated
14.08.2023 submitted in furtherance of an
FIR No. 65/2023 dated 13.05.2022, the
impugned
summoning
order
dated
23.11.2023 and the entire proceeding of
Criminal Case No. 125014/2023 pending in
the Court of learned Civil Judge (Jr.
Div.)/FTC
Crime
Against
Women,
Lucknow, are hereby quashed.

----------
(2024) 1 ILRA 884
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED:ALLAHABAD 12.10.2023

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/S 482. No. 2969 of 2016

Neeraj Jain ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Raj Kumar Kesari

Counsel for the Opposite Parties:
G.A., Sri Birendra Kumar Mishra, Sri
Abhyuday Mehrotra

Criminal Law - Negotiable Instruments
Act, 1881 - Sections 138 & 139 - Code of
Criminal Procedure, 1973 - Section 482 -
Applicant challenged summoning order dated
24.09.2015 in Complaint Case No. 5972 of 2015
under Section 138 of NI Act, claiming cheque
was issued as security, not for discharge of
1 All. Neeraj Jain Vs. State of U.P. & Anr.
885
debt. Court held: (1) At summoning stage,
Magistrate need only assess prima facie case
based on complaint and materials; disputed
facts like cheque as security are for trial
(M.M.T.C. Ltd. Vs Medchl Chemicals and Pharma
Pvt. Ltd., (2002) 1 SCC 234). (2) Section 139
presumes
holder's
possession
of
cheque
indicates legally enforceable debt, rebuttable
during trial by accused (Rangappa Vs Sri Mohan,
(2010) 11 SCC 441). (3) Disputed questions of
fact
(e.g.,
cheque
purpose)
cannot
be
adjudicated under Section 482; quashing limited
to cases where no offence disclosed or abuse of
process (Rajeshbhai Muljibhai Patel Vs St. of
Guj., (2020) 3 SCC 794). (4) Complaint,
dishonor memo, and demand notice established
prima
facie
offence
under
Section
138;
applicant's security defence to be proved at trial.
(5) Vijay Kumar Upadhyay Vs St. of U.P. (2013
(1) ALL LJ 577) deemed per incuriam, as it
overlooked Section 139 presumption.

Application dismissed.

List of Cases cited:

1. Vijay Kumar Upadhyay Vs St. of U.P., 2013
(1) ALL LJ 577 (Para 3)

2. M.M.T.C. Ltd. Vs Medchl Chemicals and
Pharma Pvt. Ltd., (2002) 1 SCC 234 (Para 12)

3. Rangappa Vs Sri Mohan, (2010) 11 SCC 441
(Para 13)

4. Rajeshbhai Muljibhai Patel Vs St. of Guj.,
(2020) 3 SCC 794 (Para 14)

5. Rathish Babu Unnikrishnan Vs St. of NCT of
Delhi, 2022 (4) SCR 989 (Para 17)

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. Heard Sri Raj Kumar Kesari,
learned counsel for the applicant, Sri
Abhyuday Mehrotra, Advocate holding
brief of Sri Birendra Kumar Mishra,
learned counsel for the opposite party no.2
and Sri Sandeep Choudhary, learned
A.G.A. for the State.

2. The instant application u/s 482
Cr.P.C. (hereinafter referred as 'the Code')
has been filed seeking quashing of the
summoning order dated 24.09.2015 in
complaint case no. 5972 of 2015 (Motor
Oil Lubricants Pvt. Ltd. Vs Neeraj Jain) u/S
138
of
Negotiable
Instrument
Act
(hereinafter referred as ''the Act'), passed
by
Additional
Civil
Judge
(Junior
Division)/Judicial Magistrate, Court No. 4,
Agra, .

3. Learned counsel for the applicant
submits that in the instant case, the
impugned cheque was issued by the
applicant herein as a security for the
commercial
transactions
between
the
parties in the year, 2013, which has been
misused by the opposite party no.2 and the
instant complaint case has been filed by
presenting the said cheque by filling up the
amount as per his own convenience.
Therefore, learned counsel applicant has
submitted that on the basis of the said
cheque, which was issued as a security
for the commercial transactions between
the parties, no offence u/S 138 of the Act,
can be said to have been made out. In
support of his arguments, learned counsel
for the applicant has relied upon the
judgement of the Co-ordinate Bench of
this Court in Vijay Kumar Upadhyay vs.
State of U.P. & Anr. : 2013 (1) ALL LJ
577 and submitted that in that case also,
the cheque was given as a security
amount, which was not covered u/S 138
of the Act. Therefore, the Co-ordinate
Bench of this Court has quashed the
entire proceedings of the said complaint
case u/S 138 of the Act, holding that the
security cheques are not covered u/S 138
of the Act. Therefore, he has prayed for
similar
order,
quashing
the
entire
proceedings of the said complaint case
against the applicant herein.
886 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Per contra, learned counsel for the
opposite party no.2 has submitted that in
the instant case, challenge has been made
by the applicant only to the summoning
order dated 24.09.2015 and while taking
the cognizance in the matter, the learned
Magistrate is required to consider the
materials available before him at the time
of the summoning the accused persons for
the offences u/S 138 of the Act and the
Magistrate is required to satisfy himself
whether from the materials available before
him, an offence u/S 138 of the Act, prima
facie constituted or not. After recording his
satisfaction, it will be the duty of the
learned Magistrate to issue summons
against the accused persons so that he may
contest the case in accordance with law.

5. In the instant case, the complaint
filed
by
the
opposite
party
no.2,
categorically makes out a case that the
opposite party no.2 had sold the oil to the
applicant/complainant for which an amount
of Rs. 48,40,783/- were due to be paid by
the applicant to the opposite party no.2 and
out of the said amount, the applicant had
paid the sum of Rs. 36,10,821/- including
the Cash Discount, Credit Note etc., and for
the remaining amount, in discharge of the
legal debt, the applicant has issued a
cheque of Rs. 12,29,962/- on 16.06.2015,
in favour of the opposite party no.2, which
was presented for encashment by the
opposite party no.2 in his bank and the
same
cheque
was
dishonoured
on
20.06.2015 and after the said dishonour of
cheque, on 10.07.2015, the legal notice was
issued by the opposite party no.2, which
was received by the applicant herein on
14.07.2015. Despite that, the applicant
herein had failed to make payment of the
said cheque amount to the opposite party
no.2, within the period of notice. Therefore,
after the expiry of 15 days from the receipt
of the said notice, the offence u/S 138 of
the Act, is constituted and the opposite
party no.2 had filed the complaint case
within the period of limitation i.e, on
05.08.2015.
Therefore,
the
impugned
cheque, the dishonour memo and the legal
notice was placed alongwith the complaint
before the learned Magistrate, on the basis
of which the learned Magistrate has taken
cognizance with the matter, after having
satisfied himself that a prima facie offence
u/S 138 of the Act, is constituted against
the
applicant
herein.
Therefore,
the
applicant was summoned vide order dated
24.09.2015.

6. Learned counsel for the opposite
party
no.2
further
submits
that
the
arguments on behalf of the applicant that
the cheque was issued as a security or not,
that is his defence, which is to be taken by
the applicant during the trial of the said
case. Whether there was a legal liability on
the date of issuance of cheque that has to be
decided during the trial. By the Magistrate,
on the basis of the evidence led by the
applicant. If a prima facie case is made out
from the complaint, the proceedings u/S
138 of the Act, cannot be quashed while
exercising the jurisdiction u/S 482 of the
Code. In support of his arguments, learned
counsel for the opposite party no.2 has
relied upon a recent judgement of the Apex
Court in Rathish Babu Unnikrishnan vs.
The State (Govt. of NCT of Delhi) and
Another : [2022] 4 S.C.R. 989, wherein it
has been held by the Apex Court that the
burden to prove whether there was any
legally existing debt or liability against the
accused in the case u/S 138 of the Act, is to
be discharged during the trial. In the said
judgement the Apex Court relying upon the
judgement in the case of Rajeshbhai
Muljibhai Patel vs State of Gujarat (2020)
3 SCC 494, the Apex Court has held that a
1 All. Neeraj Jain Vs. State of U.P. & Anr.
887
disputed question of fact cannot be
adjudicated
while
exercising
the
jurisdiction u/S 482 of the Code. It is
further submitted by learned counsel for the
opposite party no.2 that Apex Court has
further held that at the stage of summoning
order, when the factual controversy is yet
to be contested and considered by the Trial
Court, it will not be judicious and based
upon a prima facie impression, element of
criminality cannot be ruled out.

7. Learned counsel for the State has
also supported the arguments of learned
counsel for the opposite party no.2 and
submitted that at the time of issuing
summons in the complaint case u/S 138 of
the Act, the duty of the Magistrate is to
consider the materials available before him
and record his prima facie satisfaction
whether all the ingredients of Section 138
of the Act, are fulfilled and constitute the
offence under the said section. If such a
prima facie satisfaction as recorded by the
Magistrate, the Magistrate has no option
but to issue summons against the accused
persons in the said proceedings.

8. Having heard the rival submissions
made by learned counsels for the parties,
this court has carefully perused the records
of the case.

9. Before adverting to the rival
contentions raised by the learned counsels
for the parties, it will be relevant to
consider the provisions of Sections 138 &
139 of the Act and Section 190 of the
Code, which are reproduced below:

Section 138 in The Negotiable
Instruments Act, 1881

"138. Dishonour of cheque for
insufficiency, etc., of funds in the account.
-Where any cheque drawn by a person on
an account maintained by him with a
banker for payment of any amount of
money to another person from out of that
account for the discharge, in whole or in
part, of any debt or other liability, is
returned by the bank unpaid, either
because of the amount of money standing to
the credit of that account is insufficient to
honour the cheque or that it exceeds the
amount arranged to be paid from that
account by an agreement made with that
bank, such person shall be deemed to have
committed an offence and shall, without
prejudice to any other provisions of this Act,
be punished with imprisonment for 19 [a
term which may be extended to two years], or
with fine which may extend to twice the
amount of the cheque, or with both:

Provided that nothing contained
in this section shall apply unless-

(a) the cheque has been presented
to the bank within a period of six months
from the date on which it is drawn or
within the period of its validity, whichever
is earlier;

(b) the payee or the holder in due
course of the cheque, as the case may be,
makes a demand for the payment of the
said amount of money by giving a notice in
writing, to the drawer of the cheque, 20
[within thirty days] of the receipt of
information
by
him
from
the
bank
regarding the return of the cheque as
unpaid; and

(c) the drawer of such cheque
fails to make the payment of the said
amount of money to the payee or, as the
case may be, to the holder in due course of
the cheque, within fifteen days of the
receipt of the said notice.
888 INDIAN LAW REPORTS ALLAHABAD SERIES

Explanation.- For the purposes
of this section, "debt or other liability"
means a legally enforceable debt or other
liability.]

139. Presumption in favour of
holder.-It shall be presumed, unless the
contrary is proved, 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.

Section 190 in The Code Of
Criminal Procedure, 1973

190. Cognizance of offences by
Magistrates.

(1) Subject to the provisions of
this Chapter, any Magistrate of the first
class, and any Magistrate of the second
class specially empowered in this behalf
under
sub-
section
(2),
may
take
cognizance of any offence-

(a) upon receiving a complaint of
facts which constitute such offence;

(b) upon a police report of such
facts;

(c) upon information received
from any person other than a police officer,
or upon his own knowledge, that such
offence has been committed.

(2) The Chief Judicial Magistrate
may empower any Magistrate of the second
class to take cognizance under sub- section
(1) of such offences as are within his
competence to inquire into or try."

10. To constitute the offences u/S 138
of the Act, what is required is that the
cheque is presented to the Bank within a
period of 6 months or within its validity
period, whichever is earlier and the said
cheque has been dishonoured by the Bank
and within 30 days of said dishonour of the
cheque, the holder of the cheque had issued
a demand notice, informing about the said
dishonour of cheque to the issuer of the
cheque calling upon him to make the
payment within 15 days from the receipt of
the said notice, then the offence u/S 138 of
the Act, is completed if the issuer fails to
make the payment of cheque amount.
Section 139 of the Act, creates a
presumption in favour of the holder of the
cheque that the said cheque was issued in
discharge of a debt or other liability.
Therefore, once the cheque is in a
possession of a person, it will be presumed
that the said cheque issued by the issuer of
the cheque in discharge of his legal debt or
liability. The burden to prove that the said
cheque was not issued in discharge of any
debt or liability, is on the issuer of the
cheque during the trial of the case. So far as
constituting a prima facie offence, the
presumption shall be in favour of the holder
of the cheque that the said cheque issued in
discharge of the legal liability.

11. Section 190 of the Code provides
that the Magistrate shall take cognizance of
the offence upon receiving a complaint of
fact, which constituted such offence.
Therefore, before taking cognizance on
issuing summons, the Magistrate is only
required to look into the complaint and the
relevant materials to form his opinion
whether the prima facie case is constituted
as alleged or not. If he is satisfied that a
prima facie case is made out under the
relevant provisions then he has no option
but to issue summons against the accused
persons after recording his prima facie
satisfaction.
1 All. Neeraj Jain Vs. State of U.P. & Anr.
889

12. To summarize the principles of
law with regard to quashing of the entire
proceedings u/S 138 of the Act, it will be
relevant to take note of few judgement of
Apex Court. In M.M.T.C. Ltd. & Anr. vs.
Medchl Chemicals and Pharma (P) Ltd. &
Anr : (2002) 1 SCC 234, the Apex Court
has held as under:

"17.
There
is
therefore
no
requirement that the complainant must
specifically allege in the complaint that
there was a subsisting liability. The burden
of proving that there was no existing debt
or liability was on the respondents. This
they have to discharge in the trial. At this
stage, merely on the basis of averments in
the petitions filed by them the High Court
could not have concluded that there was no
existing debt or liability."

13. In the case of Rangappa vs. Sri
Mohan : (2010) 11 SCC 441, the opinion
of Justice K.G.Balakrishnan for a three
judges Bench is relevant to be noted as
under:

"26. ... we are in agreement with
the
respondent
claimant
that
the
presumption mandated by Section 139 of
the Act does indeed include the existence of
a legally enforceable debt or liability. As
noted in the citations, this is of course in
the nature of a rebuttable presumption and
it is open to the accused to raise a defence
wherein
the
existence
of
a
legally
enforceable debt or liability can be
contested. However, there can be no doubt
that there is an initial presumption which
favours the complainant."

14. In the case of Rajeshbhai
Muljibhai Patel vs. State of Gujarat :
(2020) 3 SCC 794, it has been held by the
Apex Court that whenever the facts are
disputed, the truth should be allowed to
emerge by weighing the evidence. The
Apex Court has opined as under:

"22. ....When disputed questions
of facts are involved which need to be
adjudicated after the parties adduce
evidence, the complaint under Section 138
of the NI Act ought not to have been
quashed by the High Court by taking
recourse to Section 482 CrPC. Though, the
Court has the power to quash the criminal
complaint filed under Section 138 of the NI
Act on the legal issues like limitation, etc.
criminal complaint filed under Section 138
of the NI Act against Yogeshbhai ought not
to have been quashed merely on the ground
that there are inter se disputes between
Appellant 3 and Respondent 2. Without
keeping in view the statutory presumption
raised under Section 139 of the NI Act, the
High Court, in our view, committed a
serious error in quashing the criminal
complaint in CC No. 367 of 2016 filed
under Section 138 of the NI Act."

15. So far as quashing of the criminal
proceedings in exercise of powers u/S 482
of the Code is concerned, the judgements
of the Apex Court in State of Haryana v.
Bhajan Lal [State of Haryana v. Bhajan
Lal, 1992 Supp (1) SCC 335 : 1992 SCC
(Cri) 426], Zandu Pharmaceutical Works
Ltd. vs. Mohd. Saraful Haque : (2005) 1
SCC 122 and Neeharika Infrastructure
Pvt. Ltd. vs. State of Maharashtra and
Others : 2021 SCC OnLine SC 315, are the
guiding factors and limbs of such powers,
were the prima facie on the facts and
materials available before the Court, it is
found that no case as alleged is made out
then such proceedings can be quashed in
exercise of the powers. The other is the
case where the High Court case comes to
the conclusion that the entire proceeding is
890 INDIAN LAW REPORTS ALLAHABAD SERIES
an abuse of the process of law then such
powers can be exercised and proceedings
can be quashed.

16. In the case of Rajiv Thapar v.
Madan Lal Kapoor, (2013) 3 SCC 330, the
Apex Court has held as under:

"28. The High Court, in exercise
of its jurisdiction under Section 482 CrPC,
must make a just and rightful choice. This
is not a stage of evaluating the truthfulness
or otherwise of the allegations levelled by
the prosecution/ complainant against the
accused. Likewise, it is not a stage for
determining how weighty the defences
raised on behalf of the accused are. Even if
the accused is successful in showing some
suspicion or doubt, in the allegations
levelled by the prosecution/ complainant, it
would be impermissible to discharge the
accused before trial. This is so because it
would result in giving finality to the
accusations
levelled
by
the
prosecution/complainant, without allowing
the prosecution or the complainant to
adduce evidence to substantiate the same."

17. In the case of Rathish Babu
Unnikrishnan (Supra), which has been
vehemently relied upon by the opposite
party no.2, the Apex Court has held as
under:

"16. 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 defence without having to adduce
any
evidence
need
to
be
of
an
unimpeachable quality, so as to altogether
disprove the allegations made in the
complaint.

17. The consequences of scuttling
the criminal process at a pre-trial 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 favour of the
complainant/prosecution, as the accused
will have due opportunity to adduce
defence evidence during the trial, to rebut
the presumption.

18. 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."

18. From the above judgements, it is
crystal clear that at the stage of summoning
whether there is a legally subsisting
liability or not, is not to be considered by
the Magistrate. It is to be looked into
during the trial and the burden to prove that
there was no existing debt or liability, is on
the accused/respondents, which is to be
discharged during the trial. Section 139 of
1 All. Virendra Kumar Kushwaha & Ors. Vs. State of U.P. & Anr.
891
the Act, raises presumption that the cheque
was issued for a legally existing debt and
such presumption can be rebutted by the
respondent/accused, during the course of
the trial. At the time of exercise of
jurisdiction u/S 482 of the Act, the Court is
not required to evaluate the truthfulness or
otherwise the allegations levelled by the
complainant against the accused whatever
may be the defences of the accused, those
defences can be examined only during the
trial. Even if the accused is successful in
showing some suspicion or doubt in the
allegations levelled by the complainant, it
would be impermissible to discharge the
accused before trial. If the Magistrate is
satisfied that prima facie case is made out,
fulfilling all the ingredients of Section 138
of the Act. In view of the presumptions u/S
139 of the Act, such complaints cannot be
quashed on the basis of the averments made
by the accused with regard to his defences.

19. In the light of the aforesaid
judgements of the Apex Court, if we test the
judgement of the Co-ordinate Bench of this
Court in Vijay Kumar Upadhyay(Supra),
which has been heavily relied upon by the
learned counsel for the applicant herein, the
said judgement is prima facie appears to be
per incuriam as the same has not considered
the aforesaid settled propositions of law.
While exercising the powers u/S 482 of the
Code, the Co-ordinate Bench of this Court
has totally ignored the provisions of Section
139 of the Act, which makes out a
presumption in favour of the holder of the
cheque, which is a rebuttable presumption
and which can be rebuttted during the trial of
the accused persons. Therefore, in considered
opinion of this Court, the judgement in Vijay
Kumar Upadhyay(Supra) is not a good law
and is not applicable in the facts of the instant
case. In the light of the aforesaid judgments,
if we test the facts of the instant case, in the
instant case the opposite party no.2 was in
possession of the cheque, which was issued
by the applicant herein, which was presented
by him within its validity period in the Bank,
which was dishonoured. Notice for dishonour
and demand notice informing the dishonour
of the cheque given by the opposite party
no.2 herein to the applicant. Despite receipt
of the said notice, the applicant has failed to
make the payment of the said cheque amount.
Therefore, the instant complaint has been
filed within a period of limitation, as
provided under the Act. Section 139 of the
Act, raises a presumption in favour of the
opposite party no.2, that the said cheque was
issued by the applicant in discharge of its
legal liability, which can be rebutted by the
applicant only during the trial. Disputed
defence raised by the applicant, that the said
cheque was issued earlier in point of time as a
security, which has been denied by the
opposite party no.2, cannot be adjudicated
while exercising the powers u/S 482 of the
Code. This is a disputed question of fact that
has to be decided by the Trial Court after the
evidence is led by the parties.

20. Therefore, in the considered
opinion
of
this
Court,
the
instant
application
has
no
merits
and
is
accordingly dismissed.
----------
(2024) 1 ILRA 891
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.09.2023

BEFORE

THE HON'BLE DINESH PATHAK, J.

Application U/S 482. No. 6533 of 2023

Virendra Kumar Kushwaha & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties