High Court · 2025

1. Heard Sri Raja Ullah Khan, learned counsel for the applicants as well as Sri Vikas Sharma, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the impugned summoning order dated 13.12.2021 and the entire proceeding in Complaint No. 969 of 2019 (Neeraj Vajpayee V/S Mohammad Usaid Umar) Under Section 138 of Negotiable Instruments Act, 1861 Police Station Roza District Shahjahanpur, pending in the Court of ACJM-I District Shahjahanpur.

3. Learned counsel for the applicant has submitted that a complaint stood preferred by Neeraj Bajpayee as a power of attorney holder of Smt. Seema Bajpayee, who is sole proprietor of the firm by the name of Sushma Industries on 06.5.2019 with an allegation that with respect to supply of certain raw materials to the applicants, who owns a brick-kiln, an amount of Rs.17,92,315/- was due and payable and an FIR was also lodged by the sole proprietor of the firm under Sections 420 and 406 of IPC, FIR No. 1603 of 2017 against the O.P. No.2 with relation to the said offences. Learned counsel for the applicant submits that the applicant herein had preferred an Application u/s 528 of BNSS No. 7047 of 2025 and interim protection was accorded on 05.03.2025. Submission is that with relation to an incorrect allegation contained in the complaint, it is being alleged that a cheque stood drawn by applicant bearing number "540746" of an amount of Rs.17,92,315/- and another cheque bearing number "540747" of an amount of Rs.15,77,237/-, both of them stood dishonoured on 11.03.2019 and 13.03.2019 and a complaint was preferred on 06.04.2019. Thereafter on 13.12.2021, the applicant has been summoned under Section 138 of N.I. Act.

4. Questioning the said order, the applicant has preferred the present application. Learned counsel for the applicant has submitted that as per the averments contained in paragraph-7 of the complaint, a statutory demand notice stood issued on 06.04.2019, however, there is no date of the service of the notice upon the applicant and thus, the complaint is bound to fail, as the statutory requirement under Section 138 and 142 of the N.I. Act has not been fulfilled. He submits that the court below while summoning the applicant has overlooked the crucial aspect of the matter. Reliance has been placed upon the decision of the Hon'ble Apex Court in the case of Shakti Travels and Tours vs. State of Bihar, 2002(3) SCCC 415 as well as a decision of the Delhi High Court in HDFC Bank Ltd. Vs. Amit Kumar Singh, 2009 (0) Supreme (Delhi) 641.

5. Learned A.G.A. on the other hand submits that once the statutory notice stood issued and it has been recited in para-7, which is dated 06.04.2009, then this much would be suffice, as no further recital would be needed with respect to the fact of service or non-service, as the same is a matter of trial. He further submits that there is no dispute about the address and the name, and the presumption under Section 139 N.I. Act would always be in favour of the holder of the instrument.

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

7. Apparently, as per the allegations in the complaint, two cheques were dishonoured. A statutory complaint was issued on 06.04.2009. The argument of the learned counsel for the applicant that the date of service is not mentioned, thus the complaint cannot be proceeded with, is not convincible in view of the law laid down by the Hon'ble Apex Court in teh case of Ajeet Seeds Ltd. Vs. K. Gopala Krishnaiah, (2014) 12 SCC 685, wherein the judgment in the case of Shakti Travels & Tours (supra) came to be considered and it was 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."

8. In so far as, the judgment so relied upon of the Delhi High Court in HDFC Bank Ltd. (supra) is concerned, the same may not be of any assistance particularly in view of the dictum of the Apex Court in the case of Ajeet Seeds (supra). Even otherwise, the question as to whether the service of notice was made or not is a matter of trial, as what would be suffice at the stage of summoning would be a recital about the fact that a statutory notice was issued. Except the aforesaid arguments, no other argument has been raised. What the Court is concerned is about the presumption under Section 139 of the Act.

9. As regards the submission of learned counsel for the applicant that as per the status report, the same has not been served. It would not be appropriate for the Court to delve into the said issue, as the same would require factual determination.

10. Accordingly no good ground for interference is made out.

11. The application is rejected. Order Date :- 9.5.2025 N.S.Rathour (Vikas Budhwar, J) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad

1. Heard Sri Raja Ullah Khan, learned counsel for the applicants as well as Sri Vikas Sharma, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the impugned summoning order dated 13.12.2021 and the entire proceeding in Complaint No. 969 of 2019 (Neeraj Vajpayee V/S Mohammad Usaid Umar) Under Section 138 of Negotiable Instruments Act, 1861 Police Station Roza District Shahjahanpur, pending in the Court of ACJM-I District Shahjahanpur.

3. Learned counsel for the applicant has submitted that a complaint stood preferred by Neeraj Bajpayee as a power of attorney holder of Smt. Seema Bajpayee, who is sole proprietor of the firm by the name of Sushma Industries on 06.5.2019 with an allegation that with respect to supply of certain raw materials to the applicants, who owns a brick-kiln, an amount of Rs.17,92,315/- was due and payable and an FIR was also lodged by the sole proprietor of the firm under Sections 420 and 406 of IPC, FIR No. 1603 of 2017 against the O.P. No.2 with relation to the said offences. Learned counsel for the applicant submits that the applicant herein had preferred an Application u/s 528 of BNSS No. 7047 of 2025 and interim protection was accorded on 05.03.2025. Submission is that with relation to an incorrect allegation contained in the complaint, it is being alleged that a cheque stood drawn by applicant bearing number "540746" of an amount of Rs.17,92,315/- and another cheque bearing number "540747" of an amount of Rs.15,77,237/-, both of them stood dishonoured on 11.03.2019 and 13.03.2019 and a complaint was preferred on 06.04.2019. Thereafter on 13.12.2021, the applicant has been summoned under Section 138 of N.I. Act.

4. Questioning the said order, the applicant has preferred the present application. Learned counsel for the applicant has submitted that as per the averments contained in paragraph-7 of the complaint, a statutory demand notice stood issued on 06.04.2019, however, there is no date of the service of the notice upon the applicant and thus, the complaint is bound to fail, as the statutory requirement under Section 138 and 142 of the N.I. Act has not been fulfilled. He submits that the court below while summoning the applicant has overlooked the crucial aspect of the matter. Reliance has been placed upon the decision of the Hon'ble Apex Court in the case of Shakti Travels and Tours vs. State of Bihar, 2002(3) SCCC 415 as well as a decision of the Delhi High Court in HDFC Bank Ltd. Vs. Amit Kumar Singh, 2009 (0) Supreme (Delhi) 641.

5. Learned A.G.A. on the other hand submits that once the statutory notice stood issued and it has been recited in para-7, which is dated 06.04.2009, then this much would be suffice, as no further recital would be needed with respect to the fact of service or non-service, as the same is a matter of trial. He further submits that there is no dispute about the address and the name, and the presumption under Section 139 N.I. Act would always be in favour of the holder of the instrument.

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

7. Apparently, as per the allegations in the complaint, two cheques were dishonoured. A statutory complaint was issued on 06.04.2009. The argument of the learned counsel for the applicant that the date of service is not mentioned, thus the complaint cannot be proceeded with, is not convincible in view of the law laid down by the Hon'ble Apex Court in teh case of Ajeet Seeds Ltd. Vs. K. Gopala Krishnaiah, (2014) 12 SCC 685, wherein the judgment in the case of Shakti Travels & Tours (supra) came to be considered and it was 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."

8. In so far as, the judgment so relied upon of the Delhi High Court in HDFC Bank Ltd. (supra) is concerned, the same may not be of any assistance particularly in view of the dictum of the Apex Court in the case of Ajeet Seeds (supra). Even otherwise, the question as to whether the service of notice was made or not is a matter of trial, as what would be suffice at the stage of summoning would be a recital about the fact that a statutory notice was issued. Except the aforesaid arguments, no other argument has been raised. What the Court is concerned is about the presumption under Section 139 of the Act.

9. As regards the submission of learned counsel for the applicant that as per the status report, the same has not been served. It would not be appropriate for the Court to delve into the said issue, as the same would require factual determination.

10. Accordingly no good ground for interference is made out.

11. The application is rejected. Order Date :- 9.5.2025 N.S.Rathour (Vikas Budhwar, J) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad