Surendra Kumar v. Ram Dev Yadav), under Section

1. Heard Sri Moeez Uddin, learned counsel for the applicant as well as Sri Moti Lal learned AGA for the State/opposite party no.1.

2. This application under Section 528 of the BNSS has been filed by the applicant to set aside the summoning order dated 13.5.2024 in Complaint Case No. 269 of 2023, (Surendra Kumar vs. Ram Dev Yadav), under Section 138 of the N.I. Act, Police Station- Cantt., District Prayagraj.

3. Learned counsel for the applicant has submitted that a complaint stood lodged by the opposite party no.2 on 6.8.2023 against the applicant wherein with relation to a transfer of land, three cheques for an amount of Rs.1,50,000/- stood drawn by the applicant which have been stated to have been dishonoured on 7.2.2023. He has further submitted that though in para 8 of the complaint, it has been alleged that on 14.2.2023 statutory demand notice has been issued but there is no date mentioned as to when the same was served. He has also submitted that the complaint itself is defective as the same stood preferred on 6.3.2023. He has next submitted that he has not issued the said cheque and no criminal liability can be inflicted upon him.

4. Learned AGA has opposed the said application while contending that in para 8 of the complaint there happens to be a recital of fact that the notice stood served.

5. I have heard the learned counsel for the parties and perused the record.

6. The sole question which arises for determination is the extent of judicial intervention at this stage. Apparently, the allegation is regarding dishonouring of cheuqe on 7.2.2203 and the para 8 of the complaint states that on 14.2.2023 the statutory demand notice was issued and which was received. The summoning order was also recites about the registered receipt, bank memo and the notice. The issue as to whether the service of notice is actually made or is not to be considered at the stage when the summoning order has been issued as it is the subject matter of trial as already been decided by the Hon'ble Apex Court in the case of Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685 wherein in paragraph nos.10 and 11 which have been 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."

7. As regards the submission of learned counsel for the applicant is that the cheque has not been issued by him and no liability can be fastened the same is not liable to be accepted in view of the provisions of Section 139 of the N.I. Act creates presumption is in favour of the holder of the cheque. Thus, interference is declined and the application is rejected.

8. At this stage, learned counsel for the applicants submits that suitable direction be issued in light of the judgment in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another; decided on 07.10.2021 in S.L.P. No.5191 of 2021 with relation to enlargement on bail.

9. In the opinion of the Court, once a bail application is preferred then the same shall be considered with most expeditions strictly as per the law of the land without any delay. Order Date :- 24.4.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad

1. Heard Sri Moeez Uddin, learned counsel for the applicant as well as Sri Moti Lal learned AGA for the State/opposite party no.1.

2. This application under Section 528 of the BNSS has been filed by the applicant to set aside the summoning order dated 13.5.2024 in Complaint Case No. 269 of 2023, (Surendra Kumar vs. Ram Dev Yadav), under Section 138 of the N.I. Act, Police Station- Cantt., District Prayagraj.

3. Learned counsel for the applicant has submitted that a complaint stood lodged by the opposite party no.2 on 6.8.2023 against the applicant wherein with relation to a transfer of land, three cheques for an amount of Rs.1,50,000/- stood drawn by the applicant which have been stated to have been dishonoured on 7.2.2023. He has further submitted that though in para 8 of the complaint, it has been alleged that on 14.2.2023 statutory demand notice has been issued but there is no date mentioned as to when the same was served. He has also submitted that the complaint itself is defective as the same stood preferred on 6.3.2023. He has next submitted that he has not issued the said cheque and no criminal liability can be inflicted upon him.

4. Learned AGA has opposed the said application while contending that in para 8 of the complaint there happens to be a recital of fact that the notice stood served.

5. I have heard the learned counsel for the parties and perused the record.

6. The sole question which arises for determination is the extent of judicial intervention at this stage. Apparently, the allegation is regarding dishonouring of cheuqe on 7.2.2203 and the para 8 of the complaint states that on 14.2.2023 the statutory demand notice was issued and which was received. The summoning order was also recites about the registered receipt, bank memo and the notice. The issue as to whether the service of notice is actually made or is not to be considered at the stage when the summoning order has been issued as it is the subject matter of trial as already been decided by the Hon'ble Apex Court in the case of Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685 wherein in paragraph nos.10 and 11 which have been 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."

7. As regards the submission of learned counsel for the applicant is that the cheque has not been issued by him and no liability can be fastened the same is not liable to be accepted in view of the provisions of Section 139 of the N.I. Act creates presumption is in favour of the holder of the cheque. Thus, interference is declined and the application is rejected.

8. At this stage, learned counsel for the applicants submits that suitable direction be issued in light of the judgment in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another; decided on 07.10.2021 in S.L.P. No.5191 of 2021 with relation to enlargement on bail.

9. In the opinion of the Court, once a bail application is preferred then the same shall be considered with most expeditions strictly as per the law of the land without any delay. Order Date :- 24.4.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad