The Hon'ble Apex Court in the case of Ajeet Seeds Ltd v. K. Gopala Krishnaiah

3. Learned counsel for the applicants submits that a complaint was lodged by the opposite party no. 2 against the applicants who are 2 in number and one Sunita with an allegation that with respect to discharge of a liability, the applicant no. 2 herein on behalf of the partnership firm that drawn a cheque bearing No. 122239 of Rs. 2 lakhs which on presentation in the bank which dishonoured on

03.06.2022 with the remark 'exceed arrangement', a statutory demand notice came to be issued on 20.06.2022 which came to be served upon the applicants on 21/22.06.2022 thereafter the applicants came to be summoned on 29.10.2022.

4. Learned counsel for the applicants submits that the summoning order cannot be sustained for more than one reasons, firstly, the cheque in question had been drawn in individual capacity but the partnership firm had been arraigned as an accused, secondly, the statutory demand notice was not served upon the applicants, thirdly, the summoning order is cryptic in nature.

5. Learned State Law Officer 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 applicants who happens to be the partner of the firm in question which came to be dishonoured. The question as to whether actually the statutory demand notice came to be served or not is a subject matter of trial, however, in the complaint itself it has been mentioned that the statutory demand notice came to be served upon the opposite party no. 2 on 21/22.06.2022 that would suffice.

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 second contention of the learned counsel for the applicants is that the applicants had issued a cheque in individual capacity and it has not been issued from the partnership firm and the partnership firm has been wrongly arraigned as an accused 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 :- 1.8.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad

3. Learned counsel for the applicants submits that a complaint was lodged by the opposite party no. 2 against the applicants who are 2 in number and one Sunita with an allegation that with respect to discharge of a liability, the applicant no. 2 herein on behalf of the partnership firm that drawn a cheque bearing No. 122239 of Rs. 2 lakhs which on presentation in the bank which dishonoured on

03.06.2022 with the remark 'exceed arrangement', a statutory demand notice came to be issued on 20.06.2022 which came to be served upon the applicants on 21/22.06.2022 thereafter the applicants came to be summoned on 29.10.2022.

4. Learned counsel for the applicants submits that the summoning order cannot be sustained for more than one reasons, firstly, the cheque in question had been drawn in individual capacity but the partnership firm had been arraigned as an accused, secondly, the statutory demand notice was not served upon the applicants, thirdly, the summoning order is cryptic in nature.

5. Learned State Law Officer 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 applicants who happens to be the partner of the firm in question which came to be dishonoured. The question as to whether actually the statutory demand notice came to be served or not is a subject matter of trial, however, in the complaint itself it has been mentioned that the statutory demand notice came to be served upon the opposite party no. 2 on 21/22.06.2022 that would suffice.

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 second contention of the learned counsel for the applicants is that the applicants had issued a cheque in individual capacity and it has not been issued from the partnership firm and the partnership firm has been wrongly arraigned as an accused 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 :- 1.8.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad