Ramautar Tiwari v. Buddhavilash Kushwaha, under section

1. Heard Sri Arvind Kumar Maurya, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State.

2. This is an application filed under Section 528 of the B.N.S.S. for quashing the entire proceeding of Complaint Case No. 115/IX of 2021, Ramautar Tiwari vs. Buddhavilash Kushwaha, under section 150138 Negotiable Instrument Act Police Station Kotwali Atarra, District Banda, pending before Civil Judge (J.D.)/Judicial Magistrate Atarra, District Banda, initiated in pursuance of impugned summoning order dated 28.11.2024 passed by the Civil Judge (J.D.)/Judicial Magistrate Atarra, District Banda in Complaint Case No. 115/IX of 2021, Ramautar Tiwari vs. Buddhavilash Kushwaha, under section 138 Negotiable Instrument Act Police Station Kotwali Atarra, District Banda.

3. The case of the applicant is that a complaint was lodged under Section 138 of the N.I. Act against the applicant on 15.3.2021 by the opposite party no.2 with an allegation that with respect to discharge of a liability the applicant herein had drawn cheque bearing no. 489703 of Rs.1,57,000/- dated 30.11.2020 which on presentation in the bank on 1.1.2021 came to be dishonoured followed by a statutory demand notice dated 1.2.2021 and a complaint on 15.3.2021 the applicant came to be summoned on 28.11.2024 under Section 138 of the N.I. Act.

4. Learned counsel for the applicant submits that the summoning order cannot be sustained for more the simple reason that the cheque in question 2 NA528 No. 35715 of 2025 was a security cheque undated though signed but the amount was filled in figures and words and was presented in the bank and it was misutilized and further in the statement under Section 246 Cr.P.C. which is at page 37 relevant extract at page 38 of the paper book the complainant has come up with the stand that he has not sent the statutory demand notice through registered post and he does not remember the date. He thus submits that there is a clear cut infraction of the provision contained under Section 138 of the N.I. Act read with Section 142 of the N.I. Act.

5. Learned State Law Officer on the other hand submits that once the cheque stood drawn and it has been dishonoured then the presumption under Section 139 of the N.I. Act would be there.

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

7. Apparently, with regard to drawing of a cheque and dishonouring of the same the complaint so lodged. The question whether the cheque was a security cheque and it was misutilized and a subject matter of trial.

8. Reliance has been placed upon the Hon'ble Apex Court in the case of M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another (2022) 18 SCC 631 has observed as under:- "In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques."

9. In Sunil Todi and others Vs. State of Gujarat, (2022) 16 SCC 762 the Hon'ble Apex Court has reiterated the aforesaid law.

10. Apart from this whether the statutory demand notice has been served or not is a question of trial as what would be required would be a recital in the complaint a statutory demand notice has been issued and service and non service it would be subject matter of trial. 3 NA528 No. 35715 of 2025

11. In Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685 it was 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 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."

12. Moreover as apparent from the record and the statement of the learned counsel for the applicant that the proceedings have already underway and the statements have been recorded under Section 246 of the Cr.P.C., thus in the opinion of the Court it is for the applicant to contest the trial. 4 NA528 No. 35715 of 2025

13. Accordingly, interference is declined. Application stands disposed of leaving it open to the applicant to raise all legal and factual issues as well as issue with respect to the fact that the cheque being a security cheque does not answer the description of a dishonour of the cheque in the trial and the Court has no reasons to disbelieve that the same shall be considered in accordance with law. September 17, 2025 piyush (Vikas Budhwar,J.)

1. Heard Sri Arvind Kumar Maurya, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State.

2. This is an application filed under Section 528 of the B.N.S.S. for quashing the entire proceeding of Complaint Case No. 115/IX of 2021, Ramautar Tiwari vs. Buddhavilash Kushwaha, under section 150138 Negotiable Instrument Act Police Station Kotwali Atarra, District Banda, pending before Civil Judge (J.D.)/Judicial Magistrate Atarra, District Banda, initiated in pursuance of impugned summoning order dated 28.11.2024 passed by the Civil Judge (J.D.)/Judicial Magistrate Atarra, District Banda in Complaint Case No. 115/IX of 2021, Ramautar Tiwari vs. Buddhavilash Kushwaha, under section 138 Negotiable Instrument Act Police Station Kotwali Atarra, District Banda.

3. The case of the applicant is that a complaint was lodged under Section 138 of the N.I. Act against the applicant on 15.3.2021 by the opposite party no.2 with an allegation that with respect to discharge of a liability the applicant herein had drawn cheque bearing no. 489703 of Rs.1,57,000/- dated 30.11.2020 which on presentation in the bank on 1.1.2021 came to be dishonoured followed by a statutory demand notice dated 1.2.2021 and a complaint on 15.3.2021 the applicant came to be summoned on 28.11.2024 under Section 138 of the N.I. Act.

4. Learned counsel for the applicant submits that the summoning order cannot be sustained for more the simple reason that the cheque in question 2 NA528 No. 35715 of 2025 was a security cheque undated though signed but the amount was filled in figures and words and was presented in the bank and it was misutilized and further in the statement under Section 246 Cr.P.C. which is at page 37 relevant extract at page 38 of the paper book the complainant has come up with the stand that he has not sent the statutory demand notice through registered post and he does not remember the date. He thus submits that there is a clear cut infraction of the provision contained under Section 138 of the N.I. Act read with Section 142 of the N.I. Act.

5. Learned State Law Officer on the other hand submits that once the cheque stood drawn and it has been dishonoured then the presumption under Section 139 of the N.I. Act would be there.

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

7. Apparently, with regard to drawing of a cheque and dishonouring of the same the complaint so lodged. The question whether the cheque was a security cheque and it was misutilized and a subject matter of trial.

8. Reliance has been placed upon the Hon'ble Apex Court in the case of M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another (2022) 18 SCC 631 has observed as under:- "In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques."

9. In Sunil Todi and others Vs. State of Gujarat, (2022) 16 SCC 762 the Hon'ble Apex Court has reiterated the aforesaid law.

10. Apart from this whether the statutory demand notice has been served or not is a question of trial as what would be required would be a recital in the complaint a statutory demand notice has been issued and service and non service it would be subject matter of trial. 3 NA528 No. 35715 of 2025

11. In Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685 it was 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 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."

12. Moreover as apparent from the record and the statement of the learned counsel for the applicant that the proceedings have already underway and the statements have been recorded under Section 246 of the Cr.P.C., thus in the opinion of the Court it is for the applicant to contest the trial. 4 NA528 No. 35715 of 2025

13. Accordingly, interference is declined. Application stands disposed of leaving it open to the applicant to raise all legal and factual issues as well as issue with respect to the fact that the cheque being a security cheque does not answer the description of a dishonour of the cheque in the trial and the Court has no reasons to disbelieve that the same shall be considered in accordance with law. September 17, 2025 piyush (Vikas Budhwar,J.)