High Court

1. Heard Sri Shahbaz Khan, learned counsel for the applicant and Sri Moti Lal, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing and quash the entire criminal proceedings of Complaint Case No. 4120 of 2017, and also quash the summoning order dated 23.11.2017 passed by Court of Learned Chief Judicial Magistrate JP Nagar Amroha Under Section 138 N.I Act police station Didauli District Amroha, Pending in the Court of Learned Chief Judicial Magistrate JP Nagar Amroha.

3. The case of the applicant is that on 06.09.2017, a complaint was preferred by the O.P. No.2 against the applicant under Section 138 of the N.I. Act with an allegation that with respect to a deal struck between the parties, O.P. No.2 made a payment of Rs.22,00,000/-, however, sale deed as not executed, so the applicant herein had drawn cheques of total amount of Rs.22,00,000/-, which on presentation in the bank were dishonoured on 27.07.2017, a statutory demand notice was issued on 22.08.2017 followed by a complaint under Section 138 of N.I. Act on 06.09.2017 and the applicant came to be summoned on 23.11.2017 under Section 138 of N.I. Act. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason that first of all there is a recital contained in the complaint that the statutory demand notice was issued on 22.08.2017, but there is no recital about the date of the service of the notice. He further submits that neither in the statements under Sections 200 and 202 CrPC, nor in the summoning order there is any reference. He further submits that it is improbable and beyond comprehension that the amount of Rs.22,00,000/- would have been paid in cash and there is nothing on record to justify the date on which the said payment was made.

4. Questioning the summoning order, learned counsel for the applicant has filed the present application.

5. Learned A.G.A. on the other hand submits that first of all, summoning order is dated 23.11.2017 and there is a delay of approximately 8 years and there is no plausible explanation. He further submits that once the cheques stood drawn and were dishonoured, then the presumption under Section 139 of N.I. Act would be there.

6. Having heard the submissions so made across the Bar and after perusing the record, the sole question which arises for determination is the extent of judicial intervention.

7. Apparently with respect to dishonouring of the cheques, the complaint has been preferred. The question as to whether the statutory demand notice was served or not, is not required to be gone into at the stage of summoning, particularly when what would suffice would be a recital that the statutory notice was issued. The question whether it was served or not is a subject matter of trial. The Hon'ble Apex Court in the case of Ajeet Seeds Ltd. Vs. K. Gopala Krishnaiah, (2014) 12 SCC 685, in paragraph-10 and 11 has held 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."

8. So far as the other contention of the learned counsel for the applicant that there is no source of disclosure of Rs.22,00,000/- so stated to be paid by O.P. No.2 to the applicant is concerned, this Court at the stage of summoning is required to delve into as the same is a matter of trial, which might be at best be a defence. Moreover, presumption presumption under Section 139 of N.I. Act is already there. Apart from this there is no plausible explanation for inordinate delay in approaching this Court after a lapse of 8 years.

9. Accordingly, interference is declined. Application is disposed of leaving it open to the applicant to contest the trial while taking all legal and factual grounds before the court below and this Court has no reason to disbelieve that the court below shall consider the same in correct perspective. Order Date :- 24.7.2025 N.S.Rathour (Vikas Budhwar, J)

1. Heard Sri Shahbaz Khan, learned counsel for the applicant and Sri Moti Lal, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing and quash the entire criminal proceedings of Complaint Case No. 4120 of 2017, and also quash the summoning order dated 23.11.2017 passed by Court of Learned Chief Judicial Magistrate JP Nagar Amroha Under Section 138 N.I Act police station Didauli District Amroha, Pending in the Court of Learned Chief Judicial Magistrate JP Nagar Amroha.

3. The case of the applicant is that on 06.09.2017, a complaint was preferred by the O.P. No.2 against the applicant under Section 138 of the N.I. Act with an allegation that with respect to a deal struck between the parties, O.P. No.2 made a payment of Rs.22,00,000/-, however, sale deed as not executed, so the applicant herein had drawn cheques of total amount of Rs.22,00,000/-, which on presentation in the bank were dishonoured on 27.07.2017, a statutory demand notice was issued on 22.08.2017 followed by a complaint under Section 138 of N.I. Act on 06.09.2017 and the applicant came to be summoned on 23.11.2017 under Section 138 of N.I. Act. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason that first of all there is a recital contained in the complaint that the statutory demand notice was issued on 22.08.2017, but there is no recital about the date of the service of the notice. He further submits that neither in the statements under Sections 200 and 202 CrPC, nor in the summoning order there is any reference. He further submits that it is improbable and beyond comprehension that the amount of Rs.22,00,000/- would have been paid in cash and there is nothing on record to justify the date on which the said payment was made.

4. Questioning the summoning order, learned counsel for the applicant has filed the present application.

5. Learned A.G.A. on the other hand submits that first of all, summoning order is dated 23.11.2017 and there is a delay of approximately 8 years and there is no plausible explanation. He further submits that once the cheques stood drawn and were dishonoured, then the presumption under Section 139 of N.I. Act would be there.

6. Having heard the submissions so made across the Bar and after perusing the record, the sole question which arises for determination is the extent of judicial intervention.

7. Apparently with respect to dishonouring of the cheques, the complaint has been preferred. The question as to whether the statutory demand notice was served or not, is not required to be gone into at the stage of summoning, particularly when what would suffice would be a recital that the statutory notice was issued. The question whether it was served or not is a subject matter of trial. The Hon'ble Apex Court in the case of Ajeet Seeds Ltd. Vs. K. Gopala Krishnaiah, (2014) 12 SCC 685, in paragraph-10 and 11 has held 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."

8. So far as the other contention of the learned counsel for the applicant that there is no source of disclosure of Rs.22,00,000/- so stated to be paid by O.P. No.2 to the applicant is concerned, this Court at the stage of summoning is required to delve into as the same is a matter of trial, which might be at best be a defence. Moreover, presumption presumption under Section 139 of N.I. Act is already there. Apart from this there is no plausible explanation for inordinate delay in approaching this Court after a lapse of 8 years.

9. Accordingly, interference is declined. Application is disposed of leaving it open to the applicant to contest the trial while taking all legal and factual grounds before the court below and this Court has no reason to disbelieve that the court below shall consider the same in correct perspective. Order Date :- 24.7.2025 N.S.Rathour (Vikas Budhwar, J)