High Court

1. Heard Sri Chandra Prakash Tiwari, learned counsel for the applicant as well as Sri Bhuval Vishwakarma, learned AGA for the State/opposite party no.1.

2. This application under Section 528 of the BNSS has been filed by the applicant to quash the entire proceedings of Complaint Case No.3348 of 2023 (Irfan Vs. Bhim Sain and another), under Section 138 of the N.I. Act, Police Station Mansoori, District Ghaziabad.

3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no.2 against the applicant on 20.11.2023 under Section 138 of the N.I. Act with an allegation that with respect to an agreement so entered into between the parties for a property to be sold, a cheque of an amount of Rs.10 lakhs was drawn by the applicant on 28.8.2023 bearing no.318537 which when presented in the bank on 22.9.2023 stood dishonoured on 25.9.2023, a statutory notice was issued on 14.10.2023 followed by the complaint. He has further submitted that the applicant has been summoned without there being any compliance to the provisions contained under Section 138 read with Section 142 of the N.I. Act for the simple reason that though in paragraph no.6, it has been asserted that a statutory notice came to be issued but there is no recital about the service upon the same. He has also submitted that even the affidavit of evidence also does not disclose the said fact. He has next submitted that once the agreement to sell has not been put to enforcement then the applicant cannot be held to be committed an offence as there is no legal enforceable of debt of liability which stands attracted.

4. Learned AGA on the other hand submits that once a cheques stood drawn then the presumption under Section 139 of the N.I. Act would always be there in favour of the holder.

5. I have heard the submission so made across the bar and perused the record. Apparently, a cheque was drawn by the applicant which came to be dishonoured, the issue as whether in absence of any recital of the date of service of the statutory notice in the complaint and whether the same would be a ground to throttle the investigation and reject the complaint is concerned the issue is no more res integra as the Hon'ble Apex Court in the case of Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685 had the occasion to consider the said aspect wherein it was held that this much is suffice and sufficient that there should be a recital of notice being sent to the accused and so far as the issue as to whether the statutory notice came to be served or not is a matter of trial, 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."

6. Further so far as the contention so sought to be advanced with relation to the fact that the parties have themselves broken the commitments and resiled from the obligations set forth from the agreement is concerned, the same cannot be adjudged or adjudicated in the present proceedings as the same would have its own strength and effect when a decision is to be taken whether it is a case of conviction or acquittal. Even otherwise once a cheque stood drawn and there is no dispute to the signatures so made in the cheques then the presumption is under Section 139 of the N.I. Act would always be favour of the holder.

7. Accordingly, no case is made out. The application stands rejected.

8. Learned counsel for the applicant seeks direction for bail.

9. In the opinion of the Court, once a bail application is preferred then the same shall be considered with most expeditions strictly as per the law of the land without any delay. Order Date :- 14.5.2025 piyush

1. Heard Sri Chandra Prakash Tiwari, learned counsel for the applicant as well as Sri Bhuval Vishwakarma, learned AGA for the State/opposite party no.1.

2. This application under Section 528 of the BNSS has been filed by the applicant to quash the entire proceedings of Complaint Case No.3348 of 2023 (Irfan Vs. Bhim Sain and another), under Section 138 of the N.I. Act, Police Station Mansoori, District Ghaziabad.

3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no.2 against the applicant on 20.11.2023 under Section 138 of the N.I. Act with an allegation that with respect to an agreement so entered into between the parties for a property to be sold, a cheque of an amount of Rs.10 lakhs was drawn by the applicant on 28.8.2023 bearing no.318537 which when presented in the bank on 22.9.2023 stood dishonoured on 25.9.2023, a statutory notice was issued on 14.10.2023 followed by the complaint. He has further submitted that the applicant has been summoned without there being any compliance to the provisions contained under Section 138 read with Section 142 of the N.I. Act for the simple reason that though in paragraph no.6, it has been asserted that a statutory notice came to be issued but there is no recital about the service upon the same. He has also submitted that even the affidavit of evidence also does not disclose the said fact. He has next submitted that once the agreement to sell has not been put to enforcement then the applicant cannot be held to be committed an offence as there is no legal enforceable of debt of liability which stands attracted.

4. Learned AGA on the other hand submits that once a cheques stood drawn then the presumption under Section 139 of the N.I. Act would always be there in favour of the holder.

5. I have heard the submission so made across the bar and perused the record. Apparently, a cheque was drawn by the applicant which came to be dishonoured, the issue as whether in absence of any recital of the date of service of the statutory notice in the complaint and whether the same would be a ground to throttle the investigation and reject the complaint is concerned the issue is no more res integra as the Hon'ble Apex Court in the case of Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685 had the occasion to consider the said aspect wherein it was held that this much is suffice and sufficient that there should be a recital of notice being sent to the accused and so far as the issue as to whether the statutory notice came to be served or not is a matter of trial, 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."

6. Further so far as the contention so sought to be advanced with relation to the fact that the parties have themselves broken the commitments and resiled from the obligations set forth from the agreement is concerned, the same cannot be adjudged or adjudicated in the present proceedings as the same would have its own strength and effect when a decision is to be taken whether it is a case of conviction or acquittal. Even otherwise once a cheque stood drawn and there is no dispute to the signatures so made in the cheques then the presumption is under Section 139 of the N.I. Act would always be favour of the holder.

7. Accordingly, no case is made out. The application stands rejected.

8. Learned counsel for the applicant seeks direction for bail.

9. In the opinion of the Court, once a bail application is preferred then the same shall be considered with most expeditions strictly as per the law of the land without any delay. Order Date :- 14.5.2025 piyush