Hazi Mukeem Khan v. Sher Ali Jafari), under Section

1. Heard Ms. Saher Naqvi, learned counsel for the applicant as well as learned AGA for the State.

2. This application u/s 528 of BNSS has been preferred to quash the entire proceeding of Complaint No. 6068 of 2023 (Hazi Mukeem Khan Vs. Sher Ali Jafari), under Section 138 Negotiable Instrument Act, Police Station Izzatnagar, District Bareilly as well as impugned summoning order dated

03.05.2024 passed by the learned Additional Chief Judicial Magistrate, Court No. 5, Bareilly

3. The case of the applicant is that on 13.07.2023 a complaint stood lodged by the opposite party no. 2 against the applicant with respect to an allegation that an agreement to sale stood executed between the applicant and the opposite party no. 2 pursuant whereto the applicant herein had drawn a cheque of Rs. 15,00,000/- from his bank account dated 13.06.2023 which on presentation in the bank on 14.06.2023 came to be dishonored followed by a statutory demand notice dated

21.06.2023 and the complaint dated 13.07.2023 and the applicant came to be summoned on 03.05.2024 under Section 138 of the NI Act. Learned counsel for the applicant has submitted that first of all the statutory demand notice was not served upon the applicant as only allegations have been made that in connivance of the applicant with the postman endorsement was made and the statutory demand notice was returned that the postman could not meet the applicant which is totally incorrect and further there has been infraction of provisions of Section 138 read with section 142 of the NI Act. Secondly, it is also contended that there happens to be an agreement entered into on an affidavit on 30.11.2023 wherein the applicant has made the payment of Rs. 5,00,000/- to the wife of the opposite party no. 2 and further payment of Rs. 7,50,000/- and 2,50,000/- has been made to the opposite party no. 2 and thus, nothing remains to be further paid and there is no legal debt or liability so as to attract the provisions of Section 138 of the NI Act.

4. Learned AGA, on the other hand, submits that once the cheque stood drawn and it was dishonored then the presumption under Section 138 of the NI Act would be there.

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

6. Apparently, with respect to dishonoring of a cheque, complaint stood lodged the question as to whether the entire payments have been made or not is a question is at best the defence consideration whereof would be required when the trial commences. So far as the reliance so placed upon the bank statement and a notorized affidavit is concerned, the same is not required to be gone into while adjudging and determining whether the summoning order suffers from infirmity or not, moreover, it is subject matter of trial. As regards the objection of the learned counsel for the applicant that the applicant was not served with the statutory demand notice is concerned. Suffice it to say that whatever be relevant at the stage of summoning is the issue of clear recital of issuance of statutory demand notice the question whether it is served or not is subject matter of trial. 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."

7. Accordingly, interference is declined, application stands disposed of leaving it open to the applicant to contest the trial taking all legal and factual issues which are permissible and advisable under law Order Date :- 14.8.2025 Rajesh

1. Heard Ms. Saher Naqvi, learned counsel for the applicant as well as learned AGA for the State.

2. This application u/s 528 of BNSS has been preferred to quash the entire proceeding of Complaint No. 6068 of 2023 (Hazi Mukeem Khan Vs. Sher Ali Jafari), under Section 138 Negotiable Instrument Act, Police Station Izzatnagar, District Bareilly as well as impugned summoning order dated

03.05.2024 passed by the learned Additional Chief Judicial Magistrate, Court No. 5, Bareilly

3. The case of the applicant is that on 13.07.2023 a complaint stood lodged by the opposite party no. 2 against the applicant with respect to an allegation that an agreement to sale stood executed between the applicant and the opposite party no. 2 pursuant whereto the applicant herein had drawn a cheque of Rs. 15,00,000/- from his bank account dated 13.06.2023 which on presentation in the bank on 14.06.2023 came to be dishonored followed by a statutory demand notice dated

21.06.2023 and the complaint dated 13.07.2023 and the applicant came to be summoned on 03.05.2024 under Section 138 of the NI Act. Learned counsel for the applicant has submitted that first of all the statutory demand notice was not served upon the applicant as only allegations have been made that in connivance of the applicant with the postman endorsement was made and the statutory demand notice was returned that the postman could not meet the applicant which is totally incorrect and further there has been infraction of provisions of Section 138 read with section 142 of the NI Act. Secondly, it is also contended that there happens to be an agreement entered into on an affidavit on 30.11.2023 wherein the applicant has made the payment of Rs. 5,00,000/- to the wife of the opposite party no. 2 and further payment of Rs. 7,50,000/- and 2,50,000/- has been made to the opposite party no. 2 and thus, nothing remains to be further paid and there is no legal debt or liability so as to attract the provisions of Section 138 of the NI Act.

4. Learned AGA, on the other hand, submits that once the cheque stood drawn and it was dishonored then the presumption under Section 138 of the NI Act would be there.

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

6. Apparently, with respect to dishonoring of a cheque, complaint stood lodged the question as to whether the entire payments have been made or not is a question is at best the defence consideration whereof would be required when the trial commences. So far as the reliance so placed upon the bank statement and a notorized affidavit is concerned, the same is not required to be gone into while adjudging and determining whether the summoning order suffers from infirmity or not, moreover, it is subject matter of trial. As regards the objection of the learned counsel for the applicant that the applicant was not served with the statutory demand notice is concerned. Suffice it to say that whatever be relevant at the stage of summoning is the issue of clear recital of issuance of statutory demand notice the question whether it is served or not is subject matter of trial. 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."

7. Accordingly, interference is declined, application stands disposed of leaving it open to the applicant to contest the trial taking all legal and factual issues which are permissible and advisable under law Order Date :- 14.8.2025 Rajesh