Golden Medical Store Firm Through Soeb Jama Khan v. Arshad Husain, under Section

with Shri Shailesh Kuamr, learned counsel for the applicant and Sri S.K. Singh, learned State Law Officer for the State.

2. This application under Section 482 Cr.P.C. has been filed by the applicant to quash of the Complaint No. 23773 of 2024; Golden Medical Store Firm Through Soeb Jama Khan Vs. Arshad Husain, under Section 138 Negotiable Instrument Act, Police Station Kannauj, District Kannauj pending in the court of learned Civil Judge (Sr. Div.)/ Additional Chief Judicial Magistrate, (F.T.C.) Kannauj District Kannauj.

3. Learned counsel for the applicant submits that a complaint was lodged by the opposite party no. 2 against the applicant under Section 138 of the N.I. Act with an allegation that a cheque bearing No. 000001 dated 03.04.2024 of an amount of Rs. 3,50,000/- was drawn it, when presented in the Bank was dishonoured on 10.06.2024 and a statutory notice was issued on

14.06.2024 and thereafter a complaint was lodged on 30.07.2024 thereafter the applicant has been summoned under Section 138 of the N.I. Act on 12.11.2024. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for a single moment, particularly, in view of the fact that the opposite party no. 2 happens to be a lawyer who was engaged for pursuing the matter before the Motor Accidents Claims Tribunal and with him there was certain cheque reflects which under bona fide impression was handed over but the said cheque which was signed, were used for an ulterior motive to get it dishonoured while filling up them while inserting figures and numerical. Further submission is that the statutory notice has not been served upon the applicant. It is also contended that the said blank cheque was as a security with the opposite party no. 2.

4. Submission is that the applicant somewhat got an intuition that the said cheque was misutlized thus the payment with respect to the said cheque was stopped. He submits that there is no legal enforceable debt or liability so as to attract the provisions of Section 138 of the N.I. Act.

5. Learned AGA submits that whatever might be once a cheque stands drawn then presumption under Section 139 of the N.I. Act would be in favour of the holder.

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

7. Apparently, the allegations contained in the complaint is relatable to dishonouring of a cheque on the ground that the payment was stopped. The question as to whether for what purpose this cheque was handed over or not handed over, stolen or misutitlized which is question of subject matter of trial which cannot be a ground to assail the summoning order. As a matter of fact, these are the defences consideration whereof would arise with its own strength, magnitude and velocity at the time when the trial commences, when a decision is to be taken for acquittal or conviction.

8. Plainly and simply as per the return memo, the cheque was dated 03.04.2024 which was tendered in the bank on 03.06.2024 and the same was dishonoured on 10.06.2024, followed by a complaint statutory demand on 14.06.2024 and the complaint on

03.07.2024. 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 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. Looking into the case from the four corner of law, no case is made out to interfere at this stage or in an additional ground also that the applicant itself has participated in the proceedings and also submitted its reply which is apparent from Annexure-4 at page 35 of the paper-book.

10. As regards, the cheque was with the opposite party no. 2 as security is a question which is a subject matter of trial. In M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another, (2022) 18 SCC 631, the Hon'ble Apex Court had the occasion to consider the issue as to whether the determination can be done at the stage of summoning when the allegation that the cheque was a security cheque is concerned. The Hon'ble Apex Court has observed as under: - "In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques."

11. The aforesaid law has been followed subsequently in Sunil Todi and others vs. State of Gujarat, (2022) 16 SCC 762.

12. Accordingly, the application stands dismissed. Order Date :- 21.5.2025 A. Prajapati

with Shri Shailesh Kuamr, learned counsel for the applicant and Sri S.K. Singh, learned State Law Officer for the State.

2. This application under Section 482 Cr.P.C. has been filed by the applicant to quash of the Complaint No. 23773 of 2024; Golden Medical Store Firm Through Soeb Jama Khan Vs. Arshad Husain, under Section 138 Negotiable Instrument Act, Police Station Kannauj, District Kannauj pending in the court of learned Civil Judge (Sr. Div.)/ Additional Chief Judicial Magistrate, (F.T.C.) Kannauj District Kannauj.

3. Learned counsel for the applicant submits that a complaint was lodged by the opposite party no. 2 against the applicant under Section 138 of the N.I. Act with an allegation that a cheque bearing No. 000001 dated 03.04.2024 of an amount of Rs. 3,50,000/- was drawn it, when presented in the Bank was dishonoured on 10.06.2024 and a statutory notice was issued on

14.06.2024 and thereafter a complaint was lodged on 30.07.2024 thereafter the applicant has been summoned under Section 138 of the N.I. Act on 12.11.2024. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for a single moment, particularly, in view of the fact that the opposite party no. 2 happens to be a lawyer who was engaged for pursuing the matter before the Motor Accidents Claims Tribunal and with him there was certain cheque reflects which under bona fide impression was handed over but the said cheque which was signed, were used for an ulterior motive to get it dishonoured while filling up them while inserting figures and numerical. Further submission is that the statutory notice has not been served upon the applicant. It is also contended that the said blank cheque was as a security with the opposite party no. 2.

4. Submission is that the applicant somewhat got an intuition that the said cheque was misutlized thus the payment with respect to the said cheque was stopped. He submits that there is no legal enforceable debt or liability so as to attract the provisions of Section 138 of the N.I. Act.

5. Learned AGA submits that whatever might be once a cheque stands drawn then presumption under Section 139 of the N.I. Act would be in favour of the holder.

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

7. Apparently, the allegations contained in the complaint is relatable to dishonouring of a cheque on the ground that the payment was stopped. The question as to whether for what purpose this cheque was handed over or not handed over, stolen or misutitlized which is question of subject matter of trial which cannot be a ground to assail the summoning order. As a matter of fact, these are the defences consideration whereof would arise with its own strength, magnitude and velocity at the time when the trial commences, when a decision is to be taken for acquittal or conviction.

8. Plainly and simply as per the return memo, the cheque was dated 03.04.2024 which was tendered in the bank on 03.06.2024 and the same was dishonoured on 10.06.2024, followed by a complaint statutory demand on 14.06.2024 and the complaint on

03.07.2024. 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 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. Looking into the case from the four corner of law, no case is made out to interfere at this stage or in an additional ground also that the applicant itself has participated in the proceedings and also submitted its reply which is apparent from Annexure-4 at page 35 of the paper-book.

10. As regards, the cheque was with the opposite party no. 2 as security is a question which is a subject matter of trial. In M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another, (2022) 18 SCC 631, the Hon'ble Apex Court had the occasion to consider the issue as to whether the determination can be done at the stage of summoning when the allegation that the cheque was a security cheque is concerned. The Hon'ble Apex Court has observed as under: - "In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques."

11. The aforesaid law has been followed subsequently in Sunil Todi and others vs. State of Gujarat, (2022) 16 SCC 762.

12. Accordingly, the application stands dismissed. Order Date :- 21.5.2025 A. Prajapati