Monu Kumar v. Rampal), under Section

1. Heard Shri Amit Kumar, learned counsel for the applicant and learned State Law Officer for the State.

2. This application under Section 528 BNSS has been filed by the applicants to quash the entire proceedings of the Complaint Case No. 2079 of 2024 (Monu Kumar Vs. Rampal), under Section 138 Negotiable Instruments Act, Police Station Nagal, District Saharanpur including the summoning order dated 17.02.2025 passed by the learned Civil Judge (Jr. Div:)/ Judicial Magistrate, Deoband, District Saharanpur..

3. Learned counsel for the applicants submits that a complaint was lodged by the opposite party no. 2 against the applicant on

31.07.2024 with an allegation that with respect to discharge of a liability, the applicant had drawn a cheque bearing No. 187712 of Rs. 70,000/- dated 20.04.2024 which on presentation in the bank on 17.06.2024 which dishonoured on 18.06.2024 and a statutory demand notice came to be issued on 10.07.2024 which was refused to be received by the applicant on 12.07.2024 in conveyance with the postman. Thereafter the applicant came to be summoned on

17.02.2025.

4. Learned counsel for the applicant submits that the summoning order cannot be sustained for the simple reason that first of all the applicant had given a signed blank cheque to the opposite party no. 2 with respect to purchase of a motorbike, however, the same was misutilized and it has been dishonoured. It is also contended that from the perusal of the complaint, it is apparent that the address so shown of the applicant who has been arraigned as an accused is resident of village Paniyali Kasimpur, Dr. Khash Tehsil Devband, District Shaharanpur present resident of Prem Nagar, the said house is Raj Kiran Singh advocate but the said statutory demand notice has not been sent to the current address. Submission is that there has been any infraction under Section 138 and 142 of the N.I. Act, there is no legal debt or liability so as to invoke the provisions of Section 138 of the Act.

5. Learned AGA has opposed the application while contending that once the cheque had been drawn then there happens to be a statutory presumption under Section 139 of the Act would be there.

6. I have heard learned counsel for the parties and gone through the records carefully.

7. The sole question which arises for determination in the present proceedings is to the extent of judicial intervention. Apparently, a cheque stood drawn by the applicant which came to be dishonoured followed by a statutory demand notice. The question whether the said demand notice was actually served upon the applicant or not is a subject matter of trial, as what would be suffice, is the recital in complaint of the issuance of the statutory demand notice. Moreover, it is a question of trial which needs leading of evidence whether the address of which the notice has been issued belongs to the applicant and the resident of the same at the time when the notice is sent.

8. 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."

9. As regards, the argument raised by the learned counsel for the applicant that the said cheque was a blank signed cheque which was given for the purpose of purchasing of motorbike is concerned, the same is a question of trial being a defence. So far as the contention raised with respect to the fact that the summoning order is non-speaking and unreasoned, the same is not acceptable, particularly, the summoning order deals with all the issues, moreover, the presumption under Section 139 of the Act is there.

10. Accordingly, the interference is declined, the application stands disposed of.

11. Leaving it open to the applicants to raise legal and factual grounds while contesting the trial. Order Date :- 21.8.2025 A. Prajapati

1. Heard Shri Amit Kumar, learned counsel for the applicant and learned State Law Officer for the State.

2. This application under Section 528 BNSS has been filed by the applicants to quash the entire proceedings of the Complaint Case No. 2079 of 2024 (Monu Kumar Vs. Rampal), under Section 138 Negotiable Instruments Act, Police Station Nagal, District Saharanpur including the summoning order dated 17.02.2025 passed by the learned Civil Judge (Jr. Div:)/ Judicial Magistrate, Deoband, District Saharanpur..

3. Learned counsel for the applicants submits that a complaint was lodged by the opposite party no. 2 against the applicant on

31.07.2024 with an allegation that with respect to discharge of a liability, the applicant had drawn a cheque bearing No. 187712 of Rs. 70,000/- dated 20.04.2024 which on presentation in the bank on 17.06.2024 which dishonoured on 18.06.2024 and a statutory demand notice came to be issued on 10.07.2024 which was refused to be received by the applicant on 12.07.2024 in conveyance with the postman. Thereafter the applicant came to be summoned on

17.02.2025.

4. Learned counsel for the applicant submits that the summoning order cannot be sustained for the simple reason that first of all the applicant had given a signed blank cheque to the opposite party no. 2 with respect to purchase of a motorbike, however, the same was misutilized and it has been dishonoured. It is also contended that from the perusal of the complaint, it is apparent that the address so shown of the applicant who has been arraigned as an accused is resident of village Paniyali Kasimpur, Dr. Khash Tehsil Devband, District Shaharanpur present resident of Prem Nagar, the said house is Raj Kiran Singh advocate but the said statutory demand notice has not been sent to the current address. Submission is that there has been any infraction under Section 138 and 142 of the N.I. Act, there is no legal debt or liability so as to invoke the provisions of Section 138 of the Act.

5. Learned AGA has opposed the application while contending that once the cheque had been drawn then there happens to be a statutory presumption under Section 139 of the Act would be there.

6. I have heard learned counsel for the parties and gone through the records carefully.

7. The sole question which arises for determination in the present proceedings is to the extent of judicial intervention. Apparently, a cheque stood drawn by the applicant which came to be dishonoured followed by a statutory demand notice. The question whether the said demand notice was actually served upon the applicant or not is a subject matter of trial, as what would be suffice, is the recital in complaint of the issuance of the statutory demand notice. Moreover, it is a question of trial which needs leading of evidence whether the address of which the notice has been issued belongs to the applicant and the resident of the same at the time when the notice is sent.

8. 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."

9. As regards, the argument raised by the learned counsel for the applicant that the said cheque was a blank signed cheque which was given for the purpose of purchasing of motorbike is concerned, the same is a question of trial being a defence. So far as the contention raised with respect to the fact that the summoning order is non-speaking and unreasoned, the same is not acceptable, particularly, the summoning order deals with all the issues, moreover, the presumption under Section 139 of the Act is there.

10. Accordingly, the interference is declined, the application stands disposed of.

11. Leaving it open to the applicants to raise legal and factual grounds while contesting the trial. Order Date :- 21.8.2025 A. Prajapati