Subhash v. Ankit Kumar Chaubey), under Sections

Applicant :- Ankit Kumar Chaubey Opposite Party :- State of U.P through its Principal Secretary (Home) and another Counsel for Applicant :- Shrish Chandra, Suraj Pandey Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.

1. Heard Sri Shrish Chandra along with Sri Suraj Pandey, learned counsel for the applicant as well as Sri Sudhir Kumar Chandraul, learned AGA for the State.

2. This application u/s 528 of BNSS has been preferred to quash the entire proceeding as well as summoning order dated 28.11.2024 passed by Additional Civil Judge (Senior Division) Court No.-04/Additional Chief Judicial Magistrate, Varanasi, in Complaint Case No. 106554 of 2023, (Subhash Vs. Ankit Kumar Chaubey), under Sections 138 N.I. Act, Police Station- Cant, District-Varanasi, pending in the Court of Additional Chief Judicial Magistrate, Court No.-16, Allahabad.

3. The case of the applicant is that he is engaged in business of trading of stock market and has established a company namely, Counter Solution Expert, Universal Trade Tower Sohana Road, Sector-48, Gurugram, Haryana. Allegation in the complaint is that with respect to discharge of a liability a cheque bearing no. 000105 of Rs. 9,00,000/- dated 26.07.2023 was drawn by the applicant in favour of the opposite party no. 2 and when the same was presented by the opposite party no. 2 in the bank on 01.08.2023, the same was dishonored with a remark “payment stopped by the drawer”. Thereafter, a statutory demand notice was issued on 07.08.2023 followed by a complaint under Section 138 of the NI Act on 15.09.2023 thereafter, the applicant has been summoned under Section 138 of the NI Act on 28.11.2024 by the Court of Additional Civil Judge (S.D.), Court No. 4/Additional Chief Judicial Magistrate, Varanasi.

4. Questioning the summoning order, the present application has been preferred.

5. Learned counsel for the applicant has submitted that the complaint cannot be proceeded with and the same is bound to fall for more than one reason. Firstly, as per the recitals contained in para 8 of the complaint, this much has only been asserted that on 07.08.2023 a statutory demand notice was issued but there is no recital about the date on which the statutory demand notice was served. He submits that one of the mandatory requirement which is to be complied with as per Section 138 read with Section 142 of the NI Act. Reliance has been placed upon the judgment in Subodh S. Salaskar Vs. Jayprakash M. Shah and others: AIR (2008) Supreme Court 3086. Submission is that since there is no date mentioned in para 8 of the complaint of the service, thus, 30 days' period is to lapse for deemed service under Section 27 of the General Clauses Act followed by 15 days further period to make the payment and, thus, the complaint was filed prematurely. Secondly, the subject cheque which contained many leaflets were misplaced from Sindhora Bazar, District Varanasi on 22.02.2023 and a complaint to the said extent was lodged immediately on 12.02.2023 before the police station as the applicant was quite confident that the same would be prone to mis-utilization as the same was the signed cheque and thirdly, while inviting attention towards paragraph no. 13 of the application, it is contended that as a matter of fact, the stolen cheques have been misused by the opposite party no. 2 and circumstances have been tailor-made just in order to make out a case to rope in the applicant. Thus, it is prayed that the summoning order as well as complaint be quashed.

6. Sri Sudhir Kumar Chandrau, learned AGA, on the other hand, submits that the question as to whether the statutory demand notice was served or not is a matter of trial and further according to him, once a cheque stood drawn then in the event of dishonor, the presumption under Section 139 of the NI Act will be in favour of the holder. Lastly, he submits that the question as to whether what would be the impact and ramification of dishonor of cheques being stolen and misused is a subject matter of trial as the same at best can be a defence.

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

8. Apparently, a complaint was lodged on 15.09.2023 by the opposite party no. 2 against the applicant under Section 138 of the NI Act with an allegation that bearing no. 000105 of Rs. 9,00,000/- dated 26.07.2023 on presentation in the bank stood dishonored on 01.08.2024. The objection of the learned counsel is that the only recitals contained in para 7 of the complaint is the issuance of the statutory demand notice on 07.08.2023 but there is no date on which the same stood served upon the applicant, thus, the complaint would not be maintainable. Though reliance has been placed upon the decision in Subodh S. Salaskar (supra) but the said issue engaging attention before this Court came up for consideration in Hon'ble Apex Court in 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. Applying the principles of law as laid down in the above noted decision in the present case, an irresistible conclusion stands drawn that what would be suffice in order to maintain the complaint would be a recital in the complaint that a statutory demand notice has been issued, however, in absence of any recital in the complaint about the date of service, the same would not make the complaint maintainable as the question of service or non service is a matter which is subject matter of trial which cannot be adjudged or adjudicated at the stage of summoning. As regards the other submissions so sought to be raised regarding the factum of the cheque reflects being lost and the complaint being lodged on 12.02.2023 is concerned, this Court is not required to delve into the said issue at this stage in absence of adequate materials particularly when the argument of the learned AGA would be that the details of the cheques which have been lost has not been mentioned in the complaint.

10. Insofar as the argument sought to be raised with respect to the fact that there happens to be animosity and friction between the applicant and the opposite party no. 2 and the entire circumstances were tailor-made is concerned, the same is also not subject matter to be taken into consideration at the stage of trial as the may at best be the defence whose velocity and magnitude would be tested on its own strength when a decision is to be taken for acquittal or conviction.

11. Accordingly, no case for interference is made out, the application is rejected. Order Date :- 21.5.2025 Rajesh

Applicant :- Ankit Kumar Chaubey Opposite Party :- State of U.P through its Principal Secretary (Home) and another Counsel for Applicant :- Shrish Chandra, Suraj Pandey Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.

1. Heard Sri Shrish Chandra along with Sri Suraj Pandey, learned counsel for the applicant as well as Sri Sudhir Kumar Chandraul, learned AGA for the State.

2. This application u/s 528 of BNSS has been preferred to quash the entire proceeding as well as summoning order dated 28.11.2024 passed by Additional Civil Judge (Senior Division) Court No.-04/Additional Chief Judicial Magistrate, Varanasi, in Complaint Case No. 106554 of 2023, (Subhash Vs. Ankit Kumar Chaubey), under Sections 138 N.I. Act, Police Station- Cant, District-Varanasi, pending in the Court of Additional Chief Judicial Magistrate, Court No.-16, Allahabad.

3. The case of the applicant is that he is engaged in business of trading of stock market and has established a company namely, Counter Solution Expert, Universal Trade Tower Sohana Road, Sector-48, Gurugram, Haryana. Allegation in the complaint is that with respect to discharge of a liability a cheque bearing no. 000105 of Rs. 9,00,000/- dated 26.07.2023 was drawn by the applicant in favour of the opposite party no. 2 and when the same was presented by the opposite party no. 2 in the bank on 01.08.2023, the same was dishonored with a remark “payment stopped by the drawer”. Thereafter, a statutory demand notice was issued on 07.08.2023 followed by a complaint under Section 138 of the NI Act on 15.09.2023 thereafter, the applicant has been summoned under Section 138 of the NI Act on 28.11.2024 by the Court of Additional Civil Judge (S.D.), Court No. 4/Additional Chief Judicial Magistrate, Varanasi.

4. Questioning the summoning order, the present application has been preferred.

5. Learned counsel for the applicant has submitted that the complaint cannot be proceeded with and the same is bound to fall for more than one reason. Firstly, as per the recitals contained in para 8 of the complaint, this much has only been asserted that on 07.08.2023 a statutory demand notice was issued but there is no recital about the date on which the statutory demand notice was served. He submits that one of the mandatory requirement which is to be complied with as per Section 138 read with Section 142 of the NI Act. Reliance has been placed upon the judgment in Subodh S. Salaskar Vs. Jayprakash M. Shah and others: AIR (2008) Supreme Court 3086. Submission is that since there is no date mentioned in para 8 of the complaint of the service, thus, 30 days' period is to lapse for deemed service under Section 27 of the General Clauses Act followed by 15 days further period to make the payment and, thus, the complaint was filed prematurely. Secondly, the subject cheque which contained many leaflets were misplaced from Sindhora Bazar, District Varanasi on 22.02.2023 and a complaint to the said extent was lodged immediately on 12.02.2023 before the police station as the applicant was quite confident that the same would be prone to mis-utilization as the same was the signed cheque and thirdly, while inviting attention towards paragraph no. 13 of the application, it is contended that as a matter of fact, the stolen cheques have been misused by the opposite party no. 2 and circumstances have been tailor-made just in order to make out a case to rope in the applicant. Thus, it is prayed that the summoning order as well as complaint be quashed.

6. Sri Sudhir Kumar Chandrau, learned AGA, on the other hand, submits that the question as to whether the statutory demand notice was served or not is a matter of trial and further according to him, once a cheque stood drawn then in the event of dishonor, the presumption under Section 139 of the NI Act will be in favour of the holder. Lastly, he submits that the question as to whether what would be the impact and ramification of dishonor of cheques being stolen and misused is a subject matter of trial as the same at best can be a defence.

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

8. Apparently, a complaint was lodged on 15.09.2023 by the opposite party no. 2 against the applicant under Section 138 of the NI Act with an allegation that bearing no. 000105 of Rs. 9,00,000/- dated 26.07.2023 on presentation in the bank stood dishonored on 01.08.2024. The objection of the learned counsel is that the only recitals contained in para 7 of the complaint is the issuance of the statutory demand notice on 07.08.2023 but there is no date on which the same stood served upon the applicant, thus, the complaint would not be maintainable. Though reliance has been placed upon the decision in Subodh S. Salaskar (supra) but the said issue engaging attention before this Court came up for consideration in Hon'ble Apex Court in 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. Applying the principles of law as laid down in the above noted decision in the present case, an irresistible conclusion stands drawn that what would be suffice in order to maintain the complaint would be a recital in the complaint that a statutory demand notice has been issued, however, in absence of any recital in the complaint about the date of service, the same would not make the complaint maintainable as the question of service or non service is a matter which is subject matter of trial which cannot be adjudged or adjudicated at the stage of summoning. As regards the other submissions so sought to be raised regarding the factum of the cheque reflects being lost and the complaint being lodged on 12.02.2023 is concerned, this Court is not required to delve into the said issue at this stage in absence of adequate materials particularly when the argument of the learned AGA would be that the details of the cheques which have been lost has not been mentioned in the complaint.

10. Insofar as the argument sought to be raised with respect to the fact that there happens to be animosity and friction between the applicant and the opposite party no. 2 and the entire circumstances were tailor-made is concerned, the same is also not subject matter to be taken into consideration at the stage of trial as the may at best be the defence whose velocity and magnitude would be tested on its own strength when a decision is to be taken for acquittal or conviction.

11. Accordingly, no case for interference is made out, the application is rejected. Order Date :- 21.5.2025 Rajesh