N.I. Act Police Station Ramghat, District Bulandshahar (Ajab Singh v. Rajkumar

1. Heard Sri Ram Raj Pandey, learned counsel for the applicant and Sri Pankaj Kumar Rai, learned State law Officer for the State.

2. This application under Section 528 BNSS has been filed by the applicant to quash the summoning order dated 05.02.2021 passed by Learned Civil Judge (Junior Division) village Court Dibai, Bulandshahar along-with quash the proceeding of Complaint Case No. 135 of 2020, Under section 138 N.I. Act Police Station Ramghat, District Bulandshahar (Ajab Singh Vs Rajkumar @ Guddu).

3. Learned counsel for the applicant has submitted that a complaint was lodged 21.10.2019 by the opposite party no.2 against the applicant under Section 138 of the N.I. Act with an allegation that with respect to purchase of diesel (HSD) to the tune of Rs.10 lakhs, the applicant had drawn two cheques of three lakhs and one cheque of Rs.4 lakhs which on presentation in the bank on

20.9.2019 was dishonoured due to insufficient funds followed by a statutory demand notice on 25.10.2019 and 20.10.2019 and the complaint thereafter the applicant has been summoned under Section 138 of the N.I. Act on 5.2.2021. He has further submitted that the summoning order cannot be sustained for more than one reasons, firstly, the statutory demand notice was not served upon the applicant and secondly there is no legal enforceable debt or liability so as to invoke provisions as there is no detailed about the bills and the vouchers showing the due amount of Rs.10 lakhs.

4. Learned State Law Officer on the other submits that once the cheque stood drawn and it was dishonoured and the presumption under Section 139 of the N.I. Act would be there.

5. I have heard the submissions so raised across the bar and perused the record carefully.

6. The sole question which arises for determination is the extent of judicial intervention at this stage. Apparently, cheques stood drawn and the same was dishonoured the question as to whether the amount of Rs.10 lakhs was due as payment for diesel (HSD) is a question of fact in the matter of trial and at the stage of summoning this Court is not required to delve into the said issue. In so far as the service of the notice upon the applicant is concerned though the applicant has argued that the applicant was not served with the notice but page 24 of the tracking report shows that on 1.10.2019 the delivery was confirmed. Moreover, this Court is not required to further adjudicate upon the said aspect as it is a matter of trial as what is required in the complaint is a recital of issuance of a notice, service or no service is a matter of trial and 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 it has 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."

7. Accordingly, the interference is declined. The application stands disposed of granting liberty to the applicant to take all legal factual grounds before the court below while contesting the case and in case such grounds are taken, the Court has no reason to disbelieve that the same shall be decided strictly in accordance with law. Order Date :- 7.7.2025 piyush

1. Heard Sri Ram Raj Pandey, learned counsel for the applicant and Sri Pankaj Kumar Rai, learned State law Officer for the State.

2. This application under Section 528 BNSS has been filed by the applicant to quash the summoning order dated 05.02.2021 passed by Learned Civil Judge (Junior Division) village Court Dibai, Bulandshahar along-with quash the proceeding of Complaint Case No. 135 of 2020, Under section 138 N.I. Act Police Station Ramghat, District Bulandshahar (Ajab Singh Vs Rajkumar @ Guddu).

3. Learned counsel for the applicant has submitted that a complaint was lodged 21.10.2019 by the opposite party no.2 against the applicant under Section 138 of the N.I. Act with an allegation that with respect to purchase of diesel (HSD) to the tune of Rs.10 lakhs, the applicant had drawn two cheques of three lakhs and one cheque of Rs.4 lakhs which on presentation in the bank on

20.9.2019 was dishonoured due to insufficient funds followed by a statutory demand notice on 25.10.2019 and 20.10.2019 and the complaint thereafter the applicant has been summoned under Section 138 of the N.I. Act on 5.2.2021. He has further submitted that the summoning order cannot be sustained for more than one reasons, firstly, the statutory demand notice was not served upon the applicant and secondly there is no legal enforceable debt or liability so as to invoke provisions as there is no detailed about the bills and the vouchers showing the due amount of Rs.10 lakhs.

4. Learned State Law Officer on the other submits that once the cheque stood drawn and it was dishonoured and the presumption under Section 139 of the N.I. Act would be there.

5. I have heard the submissions so raised across the bar and perused the record carefully.

6. The sole question which arises for determination is the extent of judicial intervention at this stage. Apparently, cheques stood drawn and the same was dishonoured the question as to whether the amount of Rs.10 lakhs was due as payment for diesel (HSD) is a question of fact in the matter of trial and at the stage of summoning this Court is not required to delve into the said issue. In so far as the service of the notice upon the applicant is concerned though the applicant has argued that the applicant was not served with the notice but page 24 of the tracking report shows that on 1.10.2019 the delivery was confirmed. Moreover, this Court is not required to further adjudicate upon the said aspect as it is a matter of trial as what is required in the complaint is a recital of issuance of a notice, service or no service is a matter of trial and 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 it has 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."

7. Accordingly, the interference is declined. The application stands disposed of granting liberty to the applicant to take all legal factual grounds before the court below while contesting the case and in case such grounds are taken, the Court has no reason to disbelieve that the same shall be decided strictly in accordance with law. Order Date :- 7.7.2025 piyush