High Court

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

2. A joint statement has been made by learned counsel for the parties that they do not propose to file any further affidavit, however, the application be decided on the basis of documents available on record.

3. The facts in leading application is that on 01.01.2023 a complaint stood lodged by the opposite party no.2 against the applicant with an allegation that with respect to purchase of a property to the tune of Rs. 5.50 lac was paid by the opposite party no.2 to the applicant. However, since registry was not being done so the applicant is alleged to have drawn two cheques, one of Rs. 3 lac and second Rs. 2.50 lac. The same was presented in the bank and it was dishonoured on account of insufficient funds on 28.11.2022. A statutory demand notice was issued on 01.12.2022 however, since payments were not paid on 01.01.2023 complaint was lodged. The court of Additional Civil Judge-I/ ACJM, Gorakhpur on 21.08.2023 summoned the applicant under section 138 of N.I. Act.

4. As regard the connected application is concerned, herein the allegations is with respect to dishonour the cheque of Rs. 10 lac on 19.11.2022 a statutory notice is being stated to have been issued on 01.12.2022 followed by a complaint on 04.01.2023 and summoning of the applicant under section 138 N.I. Act on 21.08.2023

5. Assailing the summoning orders, the leading and the connected applications have been preferred before this Court.

6. Learned counsel for the applicant has submitted that the summoning order cannot be sustained particularly in view of the fact that the ingredients under section 138 of N.I. Act read with Section 142 of N.I. Act have not been complied with particularly when as per the averment contained in paragraph-12 of the complaint in the leading application as well as of the connected application, the statutory demand notice is stated to have been issued on 01.12.2022 but there is no recital about the date on which the said statutory notice was served upon the applicant. In absence of recital of the services of the statutory notice, the complaint cannot be proceeded with as it is a mandatory requirement of service of the statutory notice which is to be sent within a period of 30 days from the dishonour enabling 15 days time to the accused to make the payment. Reliance has been placed upon the decision of the Hon'ble Apex Court in the case of Yogendra Pratap Singh vs. Savitiri Pal and Ors AIR (2015) SC 157 and of a judgment by a coordinate bench in the case of Vijay Kumar Mishra vs. State of U.P. and Another reported in 2020 0 Supreme (ALL) 67. Thus, it is prayed that the summoning orders be quashed.

6. Learned AGA on the other hand submits that the summoning orders cannot be faulted in any manner whatsoever according to him the only requirement is that there should be a statutory demand notice is to be issued and once the same has been issued then the aspect as to whether the same has been served or not is a matter of trial. He submits that presumption under Section 139 of N.I. Act is always in favour of the holder of the instrument.

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

8. Apparently, in the leading application two cheques being of Rs. 3 lac and Rs. 2,50,000/- lac are stated to have been dishonoured on

28.11.2022 and a statutory notice was issued on 01.12.2022 whereas in the connected application a cheque of Rs. 10 lac is stated to have been dishonoured on 19.11.2022 and a statutory notice has been issued on 01.12.2022. The submission of learned counsel for the applicant that in both the cases, the statutory notice has though been stated to have been issued on 01.12.2022 but there is no date of service of the notice in the complaint, thus the complaint cannot be proceeded in any manner whatsoever is not conceivable in view of the judgment 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 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. Though it is the contention of learned counsel for the applicant that the statutory notice has not been served, however the same is a matter of trial which cannot be gone into particularly in view of the law laid down in the case of Ajeet Seeds (Supra) wherein it has been held that this much is suffice that the notice has been sent on a correct address. As regards the reliance placed upon the judgment in the case of Yogendra Pratap Singh (Supra) is concerned, there is no quarrel to the proposition of law so laid down therein, according to which the complaint cannot be filed before a period of 15 days after service of the notice. However, the crucial question is at what stage is to be presumed that the notice has been served or not. Obviously it cannot be at the stage of summoning. Importantly, this Court in the present proceedings is confronted with a challenge to the summoning order. Moreover, it is not the case of the applicant that the address was incorrect or not sufficient. Thus, even otherwise the presumption of service would be there. As regards the judgment in the case of Vijay Kumar Mishra (Supra) is concerned, the same may not be applicable in view of the law laid down by the Hon'ble Apex Court in the case of Ajeet Seeds Ltd (Supra). Accordingly, no case is made out and the present application is hereby rejected. Order Date :- 5.5.2025 C. MANI (Vikas Budhwar,J.)

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

2. A joint statement has been made by learned counsel for the parties that they do not propose to file any further affidavit, however, the application be decided on the basis of documents available on record.

3. The facts in leading application is that on 01.01.2023 a complaint stood lodged by the opposite party no.2 against the applicant with an allegation that with respect to purchase of a property to the tune of Rs. 5.50 lac was paid by the opposite party no.2 to the applicant. However, since registry was not being done so the applicant is alleged to have drawn two cheques, one of Rs. 3 lac and second Rs. 2.50 lac. The same was presented in the bank and it was dishonoured on account of insufficient funds on 28.11.2022. A statutory demand notice was issued on 01.12.2022 however, since payments were not paid on 01.01.2023 complaint was lodged. The court of Additional Civil Judge-I/ ACJM, Gorakhpur on 21.08.2023 summoned the applicant under section 138 of N.I. Act.

4. As regard the connected application is concerned, herein the allegations is with respect to dishonour the cheque of Rs. 10 lac on 19.11.2022 a statutory notice is being stated to have been issued on 01.12.2022 followed by a complaint on 04.01.2023 and summoning of the applicant under section 138 N.I. Act on 21.08.2023

5. Assailing the summoning orders, the leading and the connected applications have been preferred before this Court.

6. Learned counsel for the applicant has submitted that the summoning order cannot be sustained particularly in view of the fact that the ingredients under section 138 of N.I. Act read with Section 142 of N.I. Act have not been complied with particularly when as per the averment contained in paragraph-12 of the complaint in the leading application as well as of the connected application, the statutory demand notice is stated to have been issued on 01.12.2022 but there is no recital about the date on which the said statutory notice was served upon the applicant. In absence of recital of the services of the statutory notice, the complaint cannot be proceeded with as it is a mandatory requirement of service of the statutory notice which is to be sent within a period of 30 days from the dishonour enabling 15 days time to the accused to make the payment. Reliance has been placed upon the decision of the Hon'ble Apex Court in the case of Yogendra Pratap Singh vs. Savitiri Pal and Ors AIR (2015) SC 157 and of a judgment by a coordinate bench in the case of Vijay Kumar Mishra vs. State of U.P. and Another reported in 2020 0 Supreme (ALL) 67. Thus, it is prayed that the summoning orders be quashed.

6. Learned AGA on the other hand submits that the summoning orders cannot be faulted in any manner whatsoever according to him the only requirement is that there should be a statutory demand notice is to be issued and once the same has been issued then the aspect as to whether the same has been served or not is a matter of trial. He submits that presumption under Section 139 of N.I. Act is always in favour of the holder of the instrument.

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

8. Apparently, in the leading application two cheques being of Rs. 3 lac and Rs. 2,50,000/- lac are stated to have been dishonoured on

28.11.2022 and a statutory notice was issued on 01.12.2022 whereas in the connected application a cheque of Rs. 10 lac is stated to have been dishonoured on 19.11.2022 and a statutory notice has been issued on 01.12.2022. The submission of learned counsel for the applicant that in both the cases, the statutory notice has though been stated to have been issued on 01.12.2022 but there is no date of service of the notice in the complaint, thus the complaint cannot be proceeded in any manner whatsoever is not conceivable in view of the judgment 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 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. Though it is the contention of learned counsel for the applicant that the statutory notice has not been served, however the same is a matter of trial which cannot be gone into particularly in view of the law laid down in the case of Ajeet Seeds (Supra) wherein it has been held that this much is suffice that the notice has been sent on a correct address. As regards the reliance placed upon the judgment in the case of Yogendra Pratap Singh (Supra) is concerned, there is no quarrel to the proposition of law so laid down therein, according to which the complaint cannot be filed before a period of 15 days after service of the notice. However, the crucial question is at what stage is to be presumed that the notice has been served or not. Obviously it cannot be at the stage of summoning. Importantly, this Court in the present proceedings is confronted with a challenge to the summoning order. Moreover, it is not the case of the applicant that the address was incorrect or not sufficient. Thus, even otherwise the presumption of service would be there. As regards the judgment in the case of Vijay Kumar Mishra (Supra) is concerned, the same may not be applicable in view of the law laid down by the Hon'ble Apex Court in the case of Ajeet Seeds Ltd (Supra). Accordingly, no case is made out and the present application is hereby rejected. Order Date :- 5.5.2025 C. MANI (Vikas Budhwar,J.)