Anit Bhati v. Rajesh Kumar under Sections

1. Heard Sri C.B. Dubey, learned counsel for the applicant and Sri Bhuwal Vishwakarma, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 02.01.2024 passed by the learned A.C.J.M. 3rd Gautam Budh Nagar in Complaint Case No.11 of 2023, Anit Bhati Versus Rajesh Kumar under Sections 138 N.I. Act, Police Station Beeta-2, District Gautam Budh Nagar.

3. The case of the applicant is that on 20.11.2023, a complaint stood lodged by the O.P. No.2 against the applicant with an allegation that with respect to discharge of a liability, the applicant herein had drawn a cheque bearing number "000003" dated 09.10.2023 for an amount of Rs.9,00,000/-, which on presentation in the bank on 15.10.2023 came to be dishonoured on 17.10.2023 and returned with the remarks 'account closed' followed by a statutory demand notice dated 03.11.2023 and a complaint under Section 138 of N.I. Act and the applicant came to be summoned under Section 138 of N.I. Act on 02.01.2024. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason that first of all, a blank signed cheque was given to one Narendra as the applicant had taken a financial assistance of Rs.1,50,000/-, which the applicant had to pay, however, the said cheque was misutilized, as the same was handed over to O.P. No.2, who happens to be a practicing advocate in District Judgship of Gautam Budh Nagar and he had filled the figures and words in the cheque and got it misutilized. Submission is also to the extent that a statutory demand notice has not been served, as reliance has been placed upon page-57, which is the tracking report. It has been contended that the Bank Account number which is possessed by the applicant is '50100144813483', but in the entire complaint as well as in the statutory demand notice, the Account number has been shown to be '50100144813583'. Thus it is submitted that the entire proceeding stands vitiated.

4. Learned A.G.A. on the other hand submits that once a cheque stood drawn by the applicant, then presumption under Section 139 of the N.I. Act would be in favour of the holder of the cheque. He further submits that whatever arguments are being sought to be advanced, they are the matter of defence.

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, as per the allegations made in the complaint, the cheque, which came to be dishonoured followed by a statutory demand notice and a complaint. The question whether the cheque was handed over to the O.P. No.2 or it has been misutilized is a question of fact, consideration whereof is only required in the trial. This Court is not required to delve into the said issue. As regards the submission that the statutory demand notice has not been served is concerned, suffice it to mention that what is required in the complaint is the clear recital regarding issuing of the statutory demand notice, which is 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."

7. Moreover, the contention so sought to be raised regarding discrepancy in the bank accounts is concerned, the same would a factor, which has to be seen in trial. Moreover presumption under Section 139 of N.I. Act is there.

8. Accordingly, interference is declined. 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 :- 20.8.2025 N.S.Rathour (Vikas Budhwar, J)

1. Heard Sri C.B. Dubey, learned counsel for the applicant and Sri Bhuwal Vishwakarma, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 02.01.2024 passed by the learned A.C.J.M. 3rd Gautam Budh Nagar in Complaint Case No.11 of 2023, Anit Bhati Versus Rajesh Kumar under Sections 138 N.I. Act, Police Station Beeta-2, District Gautam Budh Nagar.

3. The case of the applicant is that on 20.11.2023, a complaint stood lodged by the O.P. No.2 against the applicant with an allegation that with respect to discharge of a liability, the applicant herein had drawn a cheque bearing number "000003" dated 09.10.2023 for an amount of Rs.9,00,000/-, which on presentation in the bank on 15.10.2023 came to be dishonoured on 17.10.2023 and returned with the remarks 'account closed' followed by a statutory demand notice dated 03.11.2023 and a complaint under Section 138 of N.I. Act and the applicant came to be summoned under Section 138 of N.I. Act on 02.01.2024. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason that first of all, a blank signed cheque was given to one Narendra as the applicant had taken a financial assistance of Rs.1,50,000/-, which the applicant had to pay, however, the said cheque was misutilized, as the same was handed over to O.P. No.2, who happens to be a practicing advocate in District Judgship of Gautam Budh Nagar and he had filled the figures and words in the cheque and got it misutilized. Submission is also to the extent that a statutory demand notice has not been served, as reliance has been placed upon page-57, which is the tracking report. It has been contended that the Bank Account number which is possessed by the applicant is '50100144813483', but in the entire complaint as well as in the statutory demand notice, the Account number has been shown to be '50100144813583'. Thus it is submitted that the entire proceeding stands vitiated.

4. Learned A.G.A. on the other hand submits that once a cheque stood drawn by the applicant, then presumption under Section 139 of the N.I. Act would be in favour of the holder of the cheque. He further submits that whatever arguments are being sought to be advanced, they are the matter of defence.

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, as per the allegations made in the complaint, the cheque, which came to be dishonoured followed by a statutory demand notice and a complaint. The question whether the cheque was handed over to the O.P. No.2 or it has been misutilized is a question of fact, consideration whereof is only required in the trial. This Court is not required to delve into the said issue. As regards the submission that the statutory demand notice has not been served is concerned, suffice it to mention that what is required in the complaint is the clear recital regarding issuing of the statutory demand notice, which is 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."

7. Moreover, the contention so sought to be raised regarding discrepancy in the bank accounts is concerned, the same would a factor, which has to be seen in trial. Moreover presumption under Section 139 of N.I. Act is there.

8. Accordingly, interference is declined. 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 :- 20.8.2025 N.S.Rathour (Vikas Budhwar, J)