Mukund Madhav Mishra v. Goyal Kirana Store), Under Section

Applicant :- Smt. Deepika Goyal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Manoj Kumar Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.

1. Heard Sri Manoj Kumar, 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 the entire proceedings of Complaint Case No.26789 2023 (Mukund Madhav Mishra Versus Goyal Kirana Store), Under Section 138 of Negotiable Instruments Act, Police Station Ganga Nagar, District Meerut pending in the court of Additional Chief Judicial Magistrate, Court No.6, Meerut as well as summoning order dated 22.05.2024 passed by the Additional Chief Judicial Magistrate, Court No.6, Meerut in the said case.

3. Learned counsel for the applicant has submitted that a complaint was lodged by the O.P. No.2 on 05.12.2023 under Section 138 of N.I. Act against the applicant with an allegation that the applicant with respect to discharge of a liability, had drawn a cheque bearing number "000114" of an amount Rs.15,00,000/- dated 16.08.2023, which on presentation in the bank on 17.10.2023 came to be dishonoured with the remarks 'funds insufficient'. Thereafter a statutory demand notice was issued on 28.10.2023 followed by a complaint on 05.12.2023 and the applicant came to be summoned under Section 138 of N.I. Act on 22.05.2024. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reason that there is no legal enforceable debt or liability so as to attract the provisions of Section 138 of N.I. Act, particularly when the applicant has made the entire payment and he seeks to invite the attention of the Court towards para-10. He further submits that in complaint itself, in para-11 it has been asserted that the statutory demand notice came to be issued on 28.10.2023, but there is no date of service of the said notice, thus there has been infraction and non-compliance of the provisions contained under Section 138 read with Section 142 of N.I. Act. Next it is also contended that already a FIR bearing number "03300 of 2023" came to be lodged on 02.11.2023 by the O.P. No.2 against the applicant with relation to the said amount under Section 420 IPC, thus he submits that the parallel proceedings cannot continue simultaneously.

4. Learned A.G.A. on the other hand submits that one the cheque stood drawn, then the presumption under Section 139 of the Act would apply.

5. I have heard submissions so made 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, the complaint was lodged on 05.12.2023 with relation to dishonouring of a cheque bearing number "000114" dated 16.08.2023 of Rs.15,00,000/- on 17.10.2023, a statutory notice is claimed to have been issued on 28.10.2023. As regards the first submission of learned counsel for the applicant that though there is a recital in the complaint that the statutory demand notice came to be issued on 28.10.2023, but there is no date of service of the same, thus the complaint is bound to fail, is out of context, particularly in view of the fact that what would be suffice would be a recital in the complaint regarding issuing of the statutory demand notice. 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."

7. With regard to the second submission of the learned counsel for the applicant that the applicant has paid the entire amount, as reflected in paragraph-10 of the application and now, nothing remains to be due, and there is no legal enforceable legal debt or liability, the same cannot be accepted at this stage, particularly when the payment which have been shown to be made on 28.02.2023 to 26.07.2023. The cheque in question, which has been dishonoured is dated 16.08.2023 which is post-these dates, thus even otherwise, at this stage, when the summoning order has been challenged, the Court cannot delve into the factual aspect regarding the fact that the said payments were made and were with reference to the amount which has been taken on loan pursuant whereto the cheque stood dishonoured. It is for the applicant to contest the trial and to take the benefit of Section 56 of the N.I. Act. In so far as the other submission of the learned counsel for the applicant that too simultaneous proceedings, one by virtue of FIR dated 02.11.2023 being FIR no.0300 under Section 420 and the present proceedings under Section 138 of N.I. Act cannot proceed together, the same is not liable to be accepted at this stage, particularly when the subject matters are entirely different and further there happens to be drawing of a cheque, which stood dishonoured and there are different criteria and parameters in that regard.

8. Accordingly, no good ground is made out for interference. The application is disposed of leaving it open to the applicant to contest the trial before the court below while taking all the legal and factual grounds and this Court has no reason to disbelieve that the court below shall consider the same in correct perspective. Order Date :- 1.8.2025 N.S.Rathour (Vikas Budhwar, J)

Applicant :- Smt. Deepika Goyal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Manoj Kumar Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.

1. Heard Sri Manoj Kumar, 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 the entire proceedings of Complaint Case No.26789 2023 (Mukund Madhav Mishra Versus Goyal Kirana Store), Under Section 138 of Negotiable Instruments Act, Police Station Ganga Nagar, District Meerut pending in the court of Additional Chief Judicial Magistrate, Court No.6, Meerut as well as summoning order dated 22.05.2024 passed by the Additional Chief Judicial Magistrate, Court No.6, Meerut in the said case.

3. Learned counsel for the applicant has submitted that a complaint was lodged by the O.P. No.2 on 05.12.2023 under Section 138 of N.I. Act against the applicant with an allegation that the applicant with respect to discharge of a liability, had drawn a cheque bearing number "000114" of an amount Rs.15,00,000/- dated 16.08.2023, which on presentation in the bank on 17.10.2023 came to be dishonoured with the remarks 'funds insufficient'. Thereafter a statutory demand notice was issued on 28.10.2023 followed by a complaint on 05.12.2023 and the applicant came to be summoned under Section 138 of N.I. Act on 22.05.2024. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reason that there is no legal enforceable debt or liability so as to attract the provisions of Section 138 of N.I. Act, particularly when the applicant has made the entire payment and he seeks to invite the attention of the Court towards para-10. He further submits that in complaint itself, in para-11 it has been asserted that the statutory demand notice came to be issued on 28.10.2023, but there is no date of service of the said notice, thus there has been infraction and non-compliance of the provisions contained under Section 138 read with Section 142 of N.I. Act. Next it is also contended that already a FIR bearing number "03300 of 2023" came to be lodged on 02.11.2023 by the O.P. No.2 against the applicant with relation to the said amount under Section 420 IPC, thus he submits that the parallel proceedings cannot continue simultaneously.

4. Learned A.G.A. on the other hand submits that one the cheque stood drawn, then the presumption under Section 139 of the Act would apply.

5. I have heard submissions so made 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, the complaint was lodged on 05.12.2023 with relation to dishonouring of a cheque bearing number "000114" dated 16.08.2023 of Rs.15,00,000/- on 17.10.2023, a statutory notice is claimed to have been issued on 28.10.2023. As regards the first submission of learned counsel for the applicant that though there is a recital in the complaint that the statutory demand notice came to be issued on 28.10.2023, but there is no date of service of the same, thus the complaint is bound to fail, is out of context, particularly in view of the fact that what would be suffice would be a recital in the complaint regarding issuing of the statutory demand notice. 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."

7. With regard to the second submission of the learned counsel for the applicant that the applicant has paid the entire amount, as reflected in paragraph-10 of the application and now, nothing remains to be due, and there is no legal enforceable legal debt or liability, the same cannot be accepted at this stage, particularly when the payment which have been shown to be made on 28.02.2023 to 26.07.2023. The cheque in question, which has been dishonoured is dated 16.08.2023 which is post-these dates, thus even otherwise, at this stage, when the summoning order has been challenged, the Court cannot delve into the factual aspect regarding the fact that the said payments were made and were with reference to the amount which has been taken on loan pursuant whereto the cheque stood dishonoured. It is for the applicant to contest the trial and to take the benefit of Section 56 of the N.I. Act. In so far as the other submission of the learned counsel for the applicant that too simultaneous proceedings, one by virtue of FIR dated 02.11.2023 being FIR no.0300 under Section 420 and the present proceedings under Section 138 of N.I. Act cannot proceed together, the same is not liable to be accepted at this stage, particularly when the subject matters are entirely different and further there happens to be drawing of a cheque, which stood dishonoured and there are different criteria and parameters in that regard.

8. Accordingly, no good ground is made out for interference. The application is disposed of leaving it open to the applicant to contest the trial before the court below while taking all the legal and factual grounds and this Court has no reason to disbelieve that the court below shall consider the same in correct perspective. Order Date :- 1.8.2025 N.S.Rathour (Vikas Budhwar, J)