Girish Kumari v. Jainish Kumar Singh) under Section

2. Heard Sri M.S. Yadav, learned counsel for the applicant as well as Sri Indrajeet Singh Yadav, learned AGA for the State.

3. This application u/s 582 of BNSS has been preferred for quashing the Summoning order dated 11.1.2024 passed by Special Chief Judicial Magistrate, Varanasi in Complaint Case No. 108042 of 2023 (Girish Kumari Vs. Jainish Kumar Singh) under Section 138 Negotiable Instrument Act, Police Station Rohaniya, District Varanasi.

4. Learned counsel for the applicant has submitted that on 02.08.2023 a complaint was lodged by the opposite party no. 2 against the applicant under Section 138 of the NI Act with an allegation that in pursuance of a sale deed executed by the opposite party no. 2 in favour of Sarita Tripathi wife of Prakash Tripathi. The applicant had taken the responsibility of making payment and he had drawn three cheques bearing no. 301798 dated 27.04.2023 of Rs. 9,00,000/-, cheque no. 301799 dated 09.05.2023 of Rs. 9,00,000/- and cheque no. 301800 dated 18.05.2023 of Rs. 9,00,000/- totaling to Rs. 27,00,000/-. As per the complaints, the said cheques were tendered in the bank of the opposite party no. 2 on 31.05.2023 stood dishonored on 02.06.2023 and on 22.06.2023, a statutory demand notice came to be issued which as per the avements contained in para 3 of the complaint was returned back on 07.07.2023 with an allegation that the applicants manipulated and did not receive in connivance with the postman and thereafter on 02.08.2023, the complaint had been preferred. Learned counsel for the applicant has submitted that first of all there is no legally enforceable debt as per the Section 138of the NI Act which would be attracted in the case of the applicant as the conveyance deed was executed by the opposite party no. 2 in favour of one Sarita Tripathi and, thus, whatever liability is there would be of Sarita Tripathi and not the applicant and further the three cheques as noticed above was forcefully under pressure taken from the applicant. He further submits that once there happens to be a postal endorsement that the applicant was not served then in these circumstances, it cannot be said that there had been compliance of Section 138 of NI Act read with Section 142. He further submits that the summoning order fails to notice the said facts and, thus, the summoning order is liable to be set aside.

5. Learned AGA, on the other hand, submits that there lies a presumption under Section 139 of the NI Act in favour of the holder and he submits that there is nothing wrong in the summoning order as no infirmity has been pointed out.

6. I have heard the submissions so made across the bar and also perused the record carefully.

7. Apparently, as per the complaint pursuant to a conveyance deed, three cheques stood drawn by the applicant which is stated to have been dishonored and as statutory noticed was issued on 22.06.2023 which as per the complaint on 01.07.2023 was returned that the applicant in connivance with the postman did not receive the same. As regards the submission that it is the Sarita Tripathi who is the beneficiary of the said conveyance deed who is only liable to make payment is concerned, the same cannot be gone into in the present proceedings at this stage particularly when this Court is only concerned about the drawer and it is the applicant who was drawn the cheque in favour of the opposite party no. 2. As regards the tenability of the argument that the applicant is not liable to make the payment, it is a matter of trial which cannot be gone into at this stage. As regards the submissions so sought to be made with respect to the fact that the statutory notice was not served upon the applicant is concerned, para 3 of the complaint itself alleges that the notice was sent but the applicant in connivance with the postman did not receive the same. The issue as to whether there is any truth in the said statement is a subject matter of trial which cannot be gone into in the present proceedings.

8. The issue as to whether the service of notice is actually made or is not to be considered at the stage when the summoning order has been issued as it is the subject matter of trial as already been decided by the Hon'ble Apex Court in the case of Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685 wherein in paragraph nos.10 and 11 which have been observed 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 Courts 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. Accordingly, no ground is made out for interference, the application is consigned to record. Order Date :- 2.5.2025 Rajesh

2. Heard Sri M.S. Yadav, learned counsel for the applicant as well as Sri Indrajeet Singh Yadav, learned AGA for the State.

3. This application u/s 582 of BNSS has been preferred for quashing the Summoning order dated 11.1.2024 passed by Special Chief Judicial Magistrate, Varanasi in Complaint Case No. 108042 of 2023 (Girish Kumari Vs. Jainish Kumar Singh) under Section 138 Negotiable Instrument Act, Police Station Rohaniya, District Varanasi.

4. Learned counsel for the applicant has submitted that on 02.08.2023 a complaint was lodged by the opposite party no. 2 against the applicant under Section 138 of the NI Act with an allegation that in pursuance of a sale deed executed by the opposite party no. 2 in favour of Sarita Tripathi wife of Prakash Tripathi. The applicant had taken the responsibility of making payment and he had drawn three cheques bearing no. 301798 dated 27.04.2023 of Rs. 9,00,000/-, cheque no. 301799 dated 09.05.2023 of Rs. 9,00,000/- and cheque no. 301800 dated 18.05.2023 of Rs. 9,00,000/- totaling to Rs. 27,00,000/-. As per the complaints, the said cheques were tendered in the bank of the opposite party no. 2 on 31.05.2023 stood dishonored on 02.06.2023 and on 22.06.2023, a statutory demand notice came to be issued which as per the avements contained in para 3 of the complaint was returned back on 07.07.2023 with an allegation that the applicants manipulated and did not receive in connivance with the postman and thereafter on 02.08.2023, the complaint had been preferred. Learned counsel for the applicant has submitted that first of all there is no legally enforceable debt as per the Section 138of the NI Act which would be attracted in the case of the applicant as the conveyance deed was executed by the opposite party no. 2 in favour of one Sarita Tripathi and, thus, whatever liability is there would be of Sarita Tripathi and not the applicant and further the three cheques as noticed above was forcefully under pressure taken from the applicant. He further submits that once there happens to be a postal endorsement that the applicant was not served then in these circumstances, it cannot be said that there had been compliance of Section 138 of NI Act read with Section 142. He further submits that the summoning order fails to notice the said facts and, thus, the summoning order is liable to be set aside.

5. Learned AGA, on the other hand, submits that there lies a presumption under Section 139 of the NI Act in favour of the holder and he submits that there is nothing wrong in the summoning order as no infirmity has been pointed out.

6. I have heard the submissions so made across the bar and also perused the record carefully.

7. Apparently, as per the complaint pursuant to a conveyance deed, three cheques stood drawn by the applicant which is stated to have been dishonored and as statutory noticed was issued on 22.06.2023 which as per the complaint on 01.07.2023 was returned that the applicant in connivance with the postman did not receive the same. As regards the submission that it is the Sarita Tripathi who is the beneficiary of the said conveyance deed who is only liable to make payment is concerned, the same cannot be gone into in the present proceedings at this stage particularly when this Court is only concerned about the drawer and it is the applicant who was drawn the cheque in favour of the opposite party no. 2. As regards the tenability of the argument that the applicant is not liable to make the payment, it is a matter of trial which cannot be gone into at this stage. As regards the submissions so sought to be made with respect to the fact that the statutory notice was not served upon the applicant is concerned, para 3 of the complaint itself alleges that the notice was sent but the applicant in connivance with the postman did not receive the same. The issue as to whether there is any truth in the said statement is a subject matter of trial which cannot be gone into in the present proceedings.

8. The issue as to whether the service of notice is actually made or is not to be considered at the stage when the summoning order has been issued as it is the subject matter of trial as already been decided by the Hon'ble Apex Court in the case of Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685 wherein in paragraph nos.10 and 11 which have been observed 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 Courts 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. Accordingly, no ground is made out for interference, the application is consigned to record. Order Date :- 2.5.2025 Rajesh