Hon'ble Arun Kumar Singh Deshwal,J.

1. Heard Sri Nipun Singh along with Sri Naman Agrawal, learned counsel for the applicant and Sri Rajeev Kr. Singh, learned A.G.A. for the State.

2. The instant application has been filed to quash the impugned summoning order dated 16.8.2023 as well as the entire proceeding of Complaint Case No. 10789 of 2023 (Rahul Chauhan vs. Rajiv Malhotra), under Section 138 The Negotiable Instruments Act, 1881 (hereinafter referred to as "N.I. Act"), P.S. Sector-20 Noida, Bulandshahr, pending before Additional Civil Judge (J.D.)-3/J.M., Gautam Buddh Nagar.

3. learned counsel for the applicant contends that the complaint of opposite party No.2 was dismissed in default on 18.10.2023 at the stage of taking steps itself.

Then, the concerned Court cannot restore the same because it had no jurisdiction to recall the order of dismissing the complaint for want of prosecution. In support of his contention, learned counsel for the applicant has relied upon the judgement of Major General A.S. Gauraya and another vs. S.N. Thakur and another; (1986) 2 SCC 709 . In paragraphs No. 9, 10 & 11 of this judgement, the Apex court observed that when the complaint is dismissed for non-prosecution, then the second complaint is permissible, but restoring the same by recalling the order of dismissal is not permissible. Learned counsel for the applicant has relied upon another judgement of the Punjab and Haryana High Court in the case of Krishan Lal vs. Sangeeta Aggarwal; Criminal Misc. No. M - 79076 of 2006 in which learned Single Judge also observed that when the complaint is dismissed in default, then the same cannot be restored by the same Court, and the remedy is available to file revision.

4. It is further submitted by learned counsel for the applicant that the cheque in question was conditional cheque with the condition that before submitting the cheque, opposite party No.2 will inform the applicant. In support of his contention, learned counsel for the applicant has relied upon a judgement of this Court in Smt.

Preeti Kamal Kothari vs. State of U.P. and another; 2016 SCC OnLine All 461 .

Paragraph No.10 of the aforesaid judgement is quoted as under:-

"10. In Vinita S. Rao v. Essen Corporate Services Pvt. Ltd., (2015) 1 SCC 527, one of the question before the Court was whether the cheques were given as a security, or for the purpose of any legally recoverable dues. The question was left open to be decided by the High Court. But it can be inferred that the cheques issued for security purpose, upon dishonour, would not constitute an offence under Section 138 N.I. Act.

The question, as to whether the cheques were issued for security or as guarantee, is a question of fact which can be gone into in trial. The matter can, however, be agitated in proceedings under Section 482 Cr.P.C. when the fact is reflected from incontrovertible document brought on record."

5. Learned counsel for the applicant has further relied upon the judgement of the Apex Court in Indus Airways Private Limited and Others Versus Magnum Aviation Private Limited and Another, (2014) 12 SCC 539 . Paragraph No.9 of the aforesaid judgement is quoted as under:-

"9. The Explanation appended to Section 138 explains the meaning of the expression "debt or other liability" for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability.

The Explanation leaves no manner of doubt that to attract an offence under Section 138, there should be a legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of an existing or past adjudicated liability is sine qua non for bringing an offence under Section 138. If a cheque is issued as an advance payment for purchase of the goods and for any reaso