Neutral Citation No. - 2025:AHC:6 Court No. - 77 Case :- APPLICATION U/S 482 No. - 17849 of 2024 Applicant :- Vijay Kumar Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anup Kumar Pandey,Sanjay Srivastava Counsel for Opposite Party :- G.A.

Hon'ble Arun Kumar Singh Deshwal,J.

1. Heard Sri Manish Kumar Pandey, learned counsel holding brief of Sri Anup Kumar Pandey along with Sri Sanjay Srivastava, learned counsel for the applicant and Sri Rajeev Kumar Singh, learned AGA for the State.

2. The present 482 Cr.P.C. application has been filed to quash the entire criminal proceedings including summoning order dated 19.10.2023 in Complaint Case No.14209 of 2022, under Section-138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act, 1881'), Police Station-Kotwali Padrauna, District-Kushinagar, Diwakar Versus Vijay Kumar, pending in the court of Chief Judicial Magistrate, Kushinagar at Padrauna.

3. Contention of learned counsel for the applicant is that while passing the summoning order, court below has not recorded finding in support of prima facie satisfaction. In support of his contention, learned counsel for the applicant has relied upon the judgement of the Apex Court in the cases of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & Another in Criminal Appeal No.664 of 2002 decided on 20.09.2005. It is further submitted by learned counsel for the applicant that cheque in question was not issued in discharge of any liability and same was a missing cheque. In support of his contention, learned counsel for the applicant has also relied upon the judgement of Raj Kumar Khurana Vs. State of (NCT of Delhi) & Another in Criminal Appeal No.913 of 2009, arising out of SLP (Crl.) No.8059 of 2007 decided on 05.05.2009. Therefore, no liability u/s 138 of the Act, 1881 is attracted. It is also submitted by learned counsel for the applicant that though applicant is a resident of Kushinagar but at present, he has been residing at Kanpur, therefore, the court having jurisdiction in district- Kushinagar should have conducted enquiry as required by Section 202 Cr.P.C.

4. Per contra, learned AGA has opposed the prayer on the ground that all the pleas raised by the applicant are disputed questions of fact which cannot be a ground to quash the impugned proceeding, at this stage.

5. Considering the submission of parties and on perusal of record, it appears from the impugned summoning order that after stating the facts of the complaint as well as statement, the court below after recording its satisfaction summoned the applicant on the ground that cheque signed by the applicant was returned by the bank with the endorsement 'insufficiency of fund' which prima facie attracts the liability u/s 138 of the Act, 1881. The Apex Court in the recent judgement in the case of Sharif Ahmad & Another Vs. State of U.P. & Another reported in 2024 LiveLaw SC 337 had observed in paragraph no.17 that Section 204 Cr.P.C. does not mandate the Magistrate to explicitly state the reason for issue of the summons. Therefore, no detailed reason is required to be mentioned in the summoning order.

6. So far as the contention of learned counsel for the applicant that cheque in question was a missing cheque regarding which the applicant has already informed the police is concerned, same is disputed question of fact that can be raised by the applicant during trial. As in the present case, cheque has been returned with the endorsement 'fund insufficient' and had it been the missing cheque, applicant would have instructed the bank for stopping the payment of cheque. Therefore, judgement of Raj Kumar Khurana (supra) relied upon the applicant does not apply in the present case. Apex Court in the case of Laxmi Dyechem Vs. State of Gujarat & Others reported in (2012) 13 SCC 375 as well as in the case of Lafarge Aggregates And Concrete India Private Ltd. Vs. Sukarsh Azad And Another reported in 2014 (13) SCC 779 has observed that in case dishonour of cheq