Rishipal Singh v. State of U.P & Anr.

Heard Shri Surendra Singh, learned counsel for the applicant and learned AGA for the State.

This application under Section 528 BNSS has been filed by the applicant to quash the summoning order dated 21.4.2025 along with entire proceeding of Complaint Case No.613 of 2024 (Revati Singh Vs. Rishipal Singh), under section 138 of N.I. Act, Police Station Debai, District Bulandshahar pending in the court of Judicial Magistrate (Village Court) Debai, District Bulandshahar.

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

03.12.2024 with an allegation that with respect to discharge of a liability, the applicant had drawn a cheque of an amount of Rs. 2,50,000/- which on presentation in the bank which dishonoured followed by a statutory demand notice came to be issued on

22.10.2024. Thereafter the applicant came to be summoned on

21.04.2025.

Learned counsel for the applicant submits that the summoning order cannot be sustained for the simple reason that the statutory demand notice had at no point of time being served upon the applicant and further the cheque was a security cheque with the opposite party no. 2 which was a blank cheque in which exorbitant amount of Rs. 2,50,000/- was filled and got it dishonoured. He submits that there is no legal debt or liability so as to invoke the provisions of Section 138 of the N.I. Act.

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.

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

The sole question which arises for determination in the present proceedings is to the extent of judicial intervention. Apparently, with respect to dishonour of a cheque of an amount of Rs. 2,50,000/-, a statutory demand notice came to be issued on

22.10.2024. The question whether the statutory demand notice has been served or not, a question of trial as what would suffice, would be a clear recital in the complaint about the issuance 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. "

As regards, contention of the learned counsel for the applicant that the said cheque was a security cheque and a black signed cheque in which exorbitant amount of Rs. 2,50,00/- was filled and got dishonoured is concerned, the same is a subject matter of trial and a matter of defence in the case of M/s Womb Laboratories Pvt. Ltd. vs Vijay Ahuja 2022 (18) SCC 631 and in Sunil Todi vs the State of Gujarat 2022 (16) SCC 762, moreover, the presumption under Section 139 of the Act is there.

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

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