Rakesh Kumar v. Vikash Paswan), under Section

Sri J.B. Gupta, learned AGA for the State.

2. The present U/S 482 Cr.P.C. application has been filed seeking quashing of the impugned summoning order dated 07.06.2023, passed by the learned Civil Judge (J.D.)/ F.T.C. Court No.21 (Crime Against Women Court), Prayagraj in Complaint Case No.766 of 2020 (Rakesh Kumar Vs. Vikash Paswan), under Section 138 of the Negotiable Instruments Act.

3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party No. 2 on 04.06.2020 under Section 138 of the N.I. Act with an allegation with that with respect to discharge of a liability of two cheques bearing No. 615780 of Rs. 1,00,000/- dated 16.12.2019 and No. 338308 of Rs. 3,50,000/- dated 22.12.2019 which on presentation in the bank, came to be dishonored, followed by a statutory demand notice. Thereafter the applicant came to be summoned under Section 138 of the N.I. Act on 07.06.2023.

4. Learned counsel for the applicant submits that the summoning order cannot be sustained for more than one reasons, firstly, the drawer signatures defer does not amount to offence under Section 138 of the Act, secondly, the statutory demand notice came to be sent at a different address though the applicant is resident of Gram Devamani but it was sent to Khajua as in this regard, reference is being made to page 44 of the paper book and, thirdly, no legal enforcement, debt or liability stands accrued, particularly, when there is nothing on record to show as to by which mode and manner Rs. 4,50,000/- was tendered to the applicant.

5. Learned AGA has opposed the application while contending that once the cheque had been drawn then there happens to be a statutory presumption under Section 139 of the Act would be there.

6. I have heard learned counsel for the parties and gone through the records carefully.

7. The sole question which arises for determination in the present proceedings is to the extent of judicial intervention. Apparently, with respect to dishonour of two cheques, the statutory demand notice came to be issued and the complaint to be filed. Pursuant whereto the applicant was summoned. The question whether the drawer signatures defers can be said to be a ground for exposing the drawer for the offences under Section 138 of the N.I. Act is no more res integra as the Hon'ble Apex Court in Laxmi Dyechem v. State of Gujarat (2012) 13 SCC 375 has held as under: "16. The above line of decisions leaves no room for holding that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. We find ourselves in respectful agreement with the decision in NEPC Micon Ltd. (supra) that the expression "amount of money …………. is insufficient" appearing in Section 138 of the Act is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer" are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the "signatures do not match" or that the "image is not found", which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act.

16.1 This Court has in the decisions referred to above taken note of situations and contingencies arising out of deliberate acts of omission or commission on the part of the drawers of the cheques which would inevitably result in the dishonour of the cheque issued by them. For instance this Court has held that if after issue of the cheque the drawer closes the account it must be presumed that the amount in the account was nil hence insufficient to meet the demand of the cheque. A similar result can be brought about by the drawer changing his specimen signature given to the bank or in the case of a company by the company changing the mandate of those authorised to sign the cheques on its behalf. Such changes or alteration in the mandate may be dishonest or fraudulent and that would inevitably result in dishonour of all cheques signed by the previously authorised signatories. There is in our view no qualitative difference between a situation where the dishonour takes place on account of the substitution by a new set of authorised signatories resulting in the dishonour of the cheques already issued and another situation in which the drawer of the cheque changes his own signatures or closes the account or issues instructions to the bank not to make the payment. So long as the change is brought about with a view to preventing the cheque being honoured the dishonour would become an offence under Section 138 subject to other conditions prescribed being satisfied.

16.2. There may indeed be situations where a mismatch between the signatories on the cheque drawn by the drawer and the specimen available with the bank may result in dishonour of the cheque even when the drawer never intended to invite such a dishonour. We are also conscious of the fact that an authorised signatory may in the ordinary course of business be replaced by a new signatory ending the earlier mandate to the bank. Dishonour on account of such changes that may occur in the course of ordinary business of a company, partnership or an individual may not constitute an offence by itself because such a dishonour in order to qualify for prosecution under Section 138 shall have to be preceded by a statutory notice where the drawer is called upon and has the opportunity to arrange the payment of the amount covered by the cheque. It is only when the drawer despite receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount that the dishonour would be considered a dishonour constituting an offence, hence punishable. Even in such cases, the question whether or not there was a lawfully recoverable debt or liability for discharge whereof the cheque was issued would be a matter that the trial Court will examine having regard to the evidence adduced before it and keeping in view the statutory presumption that unless rebutted the cheque is presumed to have been issued for a valid consideration."

8. The Hon'ble Apex Court in the case of Ajeet Seeds Ltd. Vs. K. Gopala Krishnaiah, (2014) 12 SCC 685, in paragraph-10 and 11 has held as under: - "10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business.

11. Applying the above conclusions to the facts of this case, it must be held that the High Court clearly erred in quashing the complaint on the ground that there was no recital in the complaint that the notice under Section 138 of the NI Act was served upon the accused. The High Court also erred in quashing the complaint on the ground that there was no proof either that the notice was served or it was returned unserved/unclaimed. That is a matter of evidence. We must mention that in C.C. Alavi Haji, this Court did not deviate from the view taken in Vinod Shivappa, but reiterated the view expressed therein with certain clarification. We have already quoted the relevant paragraphs from Vinod Shivappa where this Court has held that service of notice is a matter of evidence and proof and it would be premature at the stage of issuance of process to move the High Court for quashing of the proceeding under Section 482 of the Cr.P.C. These observations are squarely attracted to the present case. The High Court?s reliance on an order passed by a two-Judge Bench in Shakti Travel & Tours is misplaced. The order in Shakti Travel & Tours does not give any idea about the factual matrix of that case. It does not advert to rival submissions. It cannot be said therefore that it lays down any law. In any case in C.C. Alavi Haji, to which we have made a reference, the three- Judge Bench has conclusively decided the issue. In our opinion, the judgment of the two-Judge Bench in Shakti Travel & Tours does not hold the field any more."

9. With regard to the submissions so raised by the learned counsel for the applicant that the statutory demand notice came to be sent at an incorrect address, thus, the address of the applicant is according to him Devamani but it was being sent to Khajua is concerned, the same is subject matter of trial, particularly, when what would be relevant is a clear recital about sending of the notice whether it has been actually received on a proper address or not is a subject matter of trial as the said question would lead evidence which can only be thrashed out in a trial. Thirdly, the submission so made by the learned counsel for the applicant that there is no manner or mode disclosed in the complaint regarding tending of an amount of Rs. 4,50,000/- and, thus, the complaint is bound to fail is concerned, the same is not convincible, particularly, when at the stage of summoning what is required is the fact that whether the cheque had been drawn and had been dishonoured, the other aspects of the matter are subject matter of defence, consideration whereof would be required, when raised during the trial, moreover, the presumption under Section 139 of the Act is there.

10. Accordingly, the interference is declined, the application stands disposed of.

11. Leaving it open to the applicant to raise legal and factual grounds while contesting the trial. Order Date :- 22.8.2025 A. Prajapati

Sri J.B. Gupta, learned AGA for the State.

2. The present U/S 482 Cr.P.C. application has been filed seeking quashing of the impugned summoning order dated 07.06.2023, passed by the learned Civil Judge (J.D.)/ F.T.C. Court No.21 (Crime Against Women Court), Prayagraj in Complaint Case No.766 of 2020 (Rakesh Kumar Vs. Vikash Paswan), under Section 138 of the Negotiable Instruments Act.

3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party No. 2 on 04.06.2020 under Section 138 of the N.I. Act with an allegation with that with respect to discharge of a liability of two cheques bearing No. 615780 of Rs. 1,00,000/- dated 16.12.2019 and No. 338308 of Rs. 3,50,000/- dated 22.12.2019 which on presentation in the bank, came to be dishonored, followed by a statutory demand notice. Thereafter the applicant came to be summoned under Section 138 of the N.I. Act on 07.06.2023.

4. Learned counsel for the applicant submits that the summoning order cannot be sustained for more than one reasons, firstly, the drawer signatures defer does not amount to offence under Section 138 of the Act, secondly, the statutory demand notice came to be sent at a different address though the applicant is resident of Gram Devamani but it was sent to Khajua as in this regard, reference is being made to page 44 of the paper book and, thirdly, no legal enforcement, debt or liability stands accrued, particularly, when there is nothing on record to show as to by which mode and manner Rs. 4,50,000/- was tendered to the applicant.

5. Learned AGA has opposed the application while contending that once the cheque had been drawn then there happens to be a statutory presumption under Section 139 of the Act would be there.

6. I have heard learned counsel for the parties and gone through the records carefully.

7. The sole question which arises for determination in the present proceedings is to the extent of judicial intervention. Apparently, with respect to dishonour of two cheques, the statutory demand notice came to be issued and the complaint to be filed. Pursuant whereto the applicant was summoned. The question whether the drawer signatures defers can be said to be a ground for exposing the drawer for the offences under Section 138 of the N.I. Act is no more res integra as the Hon'ble Apex Court in Laxmi Dyechem v. State of Gujarat (2012) 13 SCC 375 has held as under: "16. The above line of decisions leaves no room for holding that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. We find ourselves in respectful agreement with the decision in NEPC Micon Ltd. (supra) that the expression "amount of money …………. is insufficient" appearing in Section 138 of the Act is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer" are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the "signatures do not match" or that the "image is not found", which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act.

16.1 This Court has in the decisions referred to above taken note of situations and contingencies arising out of deliberate acts of omission or commission on the part of the drawers of the cheques which would inevitably result in the dishonour of the cheque issued by them. For instance this Court has held that if after issue of the cheque the drawer closes the account it must be presumed that the amount in the account was nil hence insufficient to meet the demand of the cheque. A similar result can be brought about by the drawer changing his specimen signature given to the bank or in the case of a company by the company changing the mandate of those authorised to sign the cheques on its behalf. Such changes or alteration in the mandate may be dishonest or fraudulent and that would inevitably result in dishonour of all cheques signed by the previously authorised signatories. There is in our view no qualitative difference between a situation where the dishonour takes place on account of the substitution by a new set of authorised signatories resulting in the dishonour of the cheques already issued and another situation in which the drawer of the cheque changes his own signatures or closes the account or issues instructions to the bank not to make the payment. So long as the change is brought about with a view to preventing the cheque being honoured the dishonour would become an offence under Section 138 subject to other conditions prescribed being satisfied.

16.2. There may indeed be situations where a mismatch between the signatories on the cheque drawn by the drawer and the specimen available with the bank may result in dishonour of the cheque even when the drawer never intended to invite such a dishonour. We are also conscious of the fact that an authorised signatory may in the ordinary course of business be replaced by a new signatory ending the earlier mandate to the bank. Dishonour on account of such changes that may occur in the course of ordinary business of a company, partnership or an individual may not constitute an offence by itself because such a dishonour in order to qualify for prosecution under Section 138 shall have to be preceded by a statutory notice where the drawer is called upon and has the opportunity to arrange the payment of the amount covered by the cheque. It is only when the drawer despite receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount that the dishonour would be considered a dishonour constituting an offence, hence punishable. Even in such cases, the question whether or not there was a lawfully recoverable debt or liability for discharge whereof the cheque was issued would be a matter that the trial Court will examine having regard to the evidence adduced before it and keeping in view the statutory presumption that unless rebutted the cheque is presumed to have been issued for a valid consideration."

8. The Hon'ble Apex Court in the case of Ajeet Seeds Ltd. Vs. K. Gopala Krishnaiah, (2014) 12 SCC 685, in paragraph-10 and 11 has held as under: - "10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business.

11. Applying the above conclusions to the facts of this case, it must be held that the High Court clearly erred in quashing the complaint on the ground that there was no recital in the complaint that the notice under Section 138 of the NI Act was served upon the accused. The High Court also erred in quashing the complaint on the ground that there was no proof either that the notice was served or it was returned unserved/unclaimed. That is a matter of evidence. We must mention that in C.C. Alavi Haji, this Court did not deviate from the view taken in Vinod Shivappa, but reiterated the view expressed therein with certain clarification. We have already quoted the relevant paragraphs from Vinod Shivappa where this Court has held that service of notice is a matter of evidence and proof and it would be premature at the stage of issuance of process to move the High Court for quashing of the proceeding under Section 482 of the Cr.P.C. These observations are squarely attracted to the present case. The High Court?s reliance on an order passed by a two-Judge Bench in Shakti Travel & Tours is misplaced. The order in Shakti Travel & Tours does not give any idea about the factual matrix of that case. It does not advert to rival submissions. It cannot be said therefore that it lays down any law. In any case in C.C. Alavi Haji, to which we have made a reference, the three- Judge Bench has conclusively decided the issue. In our opinion, the judgment of the two-Judge Bench in Shakti Travel & Tours does not hold the field any more."

9. With regard to the submissions so raised by the learned counsel for the applicant that the statutory demand notice came to be sent at an incorrect address, thus, the address of the applicant is according to him Devamani but it was being sent to Khajua is concerned, the same is subject matter of trial, particularly, when what would be relevant is a clear recital about sending of the notice whether it has been actually received on a proper address or not is a subject matter of trial as the said question would lead evidence which can only be thrashed out in a trial. Thirdly, the submission so made by the learned counsel for the applicant that there is no manner or mode disclosed in the complaint regarding tending of an amount of Rs. 4,50,000/- and, thus, the complaint is bound to fail is concerned, the same is not convincible, particularly, when at the stage of summoning what is required is the fact that whether the cheque had been drawn and had been dishonoured, the other aspects of the matter are subject matter of defence, consideration whereof would be required, when raised during the trial, moreover, the presumption under Section 139 of the Act is there.

10. Accordingly, the interference is declined, the application stands disposed of.

11. Leaving it open to the applicant to raise legal and factual grounds while contesting the trial. Order Date :- 22.8.2025 A. Prajapati