The court held that debt alleged under Section 138 must be proven unless countered; evidence is necessary for defenses regarding cash transactions.

JUDGMENT :

Vikas Budhwar, J.

1. Heard Sri K. Kartikeya, learned counsel for the applicant as well as Sri S.K. Singh, learned AGA for the State.

2. This application u/s 528 of BNSS has been preferred to quash the entire proceedings of Complaint Case No. 7354 of 2023 (Keshav Singh V/s Sakshi Yadav), under Section 138 Negotiable Instruments Act, 1881 as well as summoning order dated 17.01.2024 passed by the Ld. Chief Judicial Magistrate-Ist, Gautam Budha Nagar, in Complaint Case No. 7354 of 2023, under Section 138 Negotiable Instruments Act, 1881, Police Station-Sector 24, District - Gautam Budha Nagar.

3. The case of the applicant that on 10.10.2023, a complaint came to be lodged by the opposite party no. 2 against the applicant under Section 138 of the NI Act with an allegation that the opposite party no. 2 runs a medical store and so far as the applicant herein, she runs a sweet shop and a restaurant and at times, on necessity, the husband of the applicant takes financial assistance. Allegation is that a flat bearing no. 104, Tower-D, Exotica Fresco, Sector 137, NOIDA, District Gautam Budhnagar is owned by the applicant and his wife who are the co-owners. The further allegation is that the applicants approached the opposite party no. 2 with a proposal to sell the said flat and the amounts stood transferred by the opposite party no. 2 to applicant on 15.09.2019, Rs. 20,00,000/-, on 10.10.2019, Rs. 20,00,000/-, on 15.11.2019, Rs. 20,00,000/-, on 08.12.2019, Rs. 20,00,000/- and on a stamp paper/agreement to sell came to be signed acknowledging the receipt of the said amount. It is also alleged that on 10.12.2020, the opposite party no. 2 paid an amount of Rs. 21,00,000/- totalling to Rs. 1,01,00,000/- and an agreement to sale stood signed on a Rs. 100/- non-judicial stamp paper though in the said agreement, the signature of the applicant herein was not there as she was somewhere outside but there was an agreement to the extent that when a sale deed is to be executed then they would honor the said agreement. It is also the allegation that when the opposite party no. 2 approached the applicant and her husband for getting the registry done then reluctance was shown on the premise that the value of the flat had swelled up to Rs. 1,20,00,000/- and the total amount paid to Rs. 1,01,00,000/- and the residue amount of Rs. 19,00,000/- was there which is to be paid. Since, agreement would not be entered into between the parties regarding execution of the sale deed so with respect to the discharge of the liability, the applicant herein had drawn a cheque bearing no. 065425 of 50,00,000/- on 08.08.2023 which on presentation in the bank on 09.08.2023 was returned with the remark "kindly contact drawer, drawee bank and please present again". It is also recited in the complaint that on the assurance of the applicant again the said cheque was re-presented on 21.08.2023 and the same came to be returned with the remark "kindly contact drawer, drawee bank and please present again" on 22.08.2023. Thereafter, a statutory demand notice came to be issued on 09.09.2023 which as per the recitals contained in para 13 of the application, the applicant herein got the service manipulated while returning in back with the remark "on hold addressee cannot be located. Thereafter, the present complaint has been preferred on 10.10.2023. Thereafter, the applicant came to be summoned on 17.01.2024 under Section 138 of the NI Act by the court of ACJM-I, Gautam Budhnagar.

4. Questioning the summoning order, the applicant has filed the present applicant.

5. Learned counsel for the applicant has submitted that the summoning order cannot be sustained even for single