Suryabhan Singh v. Jameen) u/s

1. Heard Sri Yash Pal Yadav, learned counsel for the applicant as well as Sri B.S. Kushwaha, learned AGA for the State.

2. This application u/s 528 of BNSS has been preferred to quash the order condoning delay dated 11.04.2023, summoning order dated 09.05.2023 and proceedings initiated in pursuance thereof, at Complaint Case No 5950 of 2020 (Suryabhan Singh Vs Jameen) u/s 138 NI dated 18.08.2020, P.S- Rasoolabad, and pending before Judicial Magistrate, Court No. 1, Kanpur Dehat.

3. The case of the applicant is that a complaint was lodged by the opposite party no. 2 on 18.08.2020 against the applicant under Section 138 of the NI Act with relation to drawing of a cheque dated 21.01.2020 of Rs. 2,75,000/- in favour of the applicant which on presentation in the bank was dishonored on 04.03.2020, a statutory notice is stated to have been issued on 12.05.2020 followed by a complaint on 18.08.2020. An application was also preferred under Section 142B of the NI Act for condonation of delay. The Court of Judicial Magistrate, Court No. 1, Kanpur Dehat in Complaint Case No. 5950 of 2020 proceeded to condone the delay and thereafter, the applicant has been summoned.

4. Questioning the order condoning the delay and summoning the applicant, the present application has been preferred.

5. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reason, firstly, there is no provision under the NI Act for condonation of delay, secondly, in paragraph 7 of the complaint, only this much has been recited that a statutory notice was issued on 12.05.2020 but there is no recital regarding service of the same. Reliance has been placed upon decision of Hon'ble Apex Court in Shakti Travel and Tours Vs. State of Bihar & another, J.T. 2000 (7) SC 563.

6. Learned AGA, on the other hand, submits that once a cheque stands drawn and dishonored then the presumption is always in favour of the holder of the cheque.

7. I have heard the submission so made across the bar and perused the record carefully.

8. Apparently, the complaint had been lodged on 18.08.2020 with relation to dishonoring of a cheque on 04.03.2020 followed by a complaint on 12.05.2020 under Section 142B the proviso itself stipulates that the cognizance of the complaint may be taken by the Court after prescribed period if the complainant satisfied the Court that he had sufficient cause for not making complaint within such period. In the present case, it is a matter of common knowledge that the pandemic relating to corona came with its own velocity and magnitude pursuant whereto for the period from March 15, 2020 till February 28, 2022, the Hon'ble Apex Court had taken a suo motu cognizance and proceeded to pass series of orders In Re: Cognizance for Extension of Limitation by order dated 10.01.2022 extending the period of limitation, thus, it cannot be said that condonation of delay is bad in the eyes of law. As regards the second submission that in absence of a specific recital of service of the statutory notice, the complaint would not be maintainable is not an issue which is to be taken into consideration at the stage of summoning, this much is to be seen whether there is a recital about issuance of the notice. The question of service or no service is a matter which is a subject matter of trial. The said issue engaging attention before this Court came up for consideration in Hon'ble Apex Court in 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 Courts 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. Accordingly, no case for interference is made out, the application is rejected. Order Date :- 23.5.2025 Rajesh RAJESH KUMAR High Court of Judicature at Allahabad

1. Heard Sri Yash Pal Yadav, learned counsel for the applicant as well as Sri B.S. Kushwaha, learned AGA for the State.

2. This application u/s 528 of BNSS has been preferred to quash the order condoning delay dated 11.04.2023, summoning order dated 09.05.2023 and proceedings initiated in pursuance thereof, at Complaint Case No 5950 of 2020 (Suryabhan Singh Vs Jameen) u/s 138 NI dated 18.08.2020, P.S- Rasoolabad, and pending before Judicial Magistrate, Court No. 1, Kanpur Dehat.

3. The case of the applicant is that a complaint was lodged by the opposite party no. 2 on 18.08.2020 against the applicant under Section 138 of the NI Act with relation to drawing of a cheque dated 21.01.2020 of Rs. 2,75,000/- in favour of the applicant which on presentation in the bank was dishonored on 04.03.2020, a statutory notice is stated to have been issued on 12.05.2020 followed by a complaint on 18.08.2020. An application was also preferred under Section 142B of the NI Act for condonation of delay. The Court of Judicial Magistrate, Court No. 1, Kanpur Dehat in Complaint Case No. 5950 of 2020 proceeded to condone the delay and thereafter, the applicant has been summoned.

4. Questioning the order condoning the delay and summoning the applicant, the present application has been preferred.

5. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reason, firstly, there is no provision under the NI Act for condonation of delay, secondly, in paragraph 7 of the complaint, only this much has been recited that a statutory notice was issued on 12.05.2020 but there is no recital regarding service of the same. Reliance has been placed upon decision of Hon'ble Apex Court in Shakti Travel and Tours Vs. State of Bihar & another, J.T. 2000 (7) SC 563.

6. Learned AGA, on the other hand, submits that once a cheque stands drawn and dishonored then the presumption is always in favour of the holder of the cheque.

7. I have heard the submission so made across the bar and perused the record carefully.

8. Apparently, the complaint had been lodged on 18.08.2020 with relation to dishonoring of a cheque on 04.03.2020 followed by a complaint on 12.05.2020 under Section 142B the proviso itself stipulates that the cognizance of the complaint may be taken by the Court after prescribed period if the complainant satisfied the Court that he had sufficient cause for not making complaint within such period. In the present case, it is a matter of common knowledge that the pandemic relating to corona came with its own velocity and magnitude pursuant whereto for the period from March 15, 2020 till February 28, 2022, the Hon'ble Apex Court had taken a suo motu cognizance and proceeded to pass series of orders In Re: Cognizance for Extension of Limitation by order dated 10.01.2022 extending the period of limitation, thus, it cannot be said that condonation of delay is bad in the eyes of law. As regards the second submission that in absence of a specific recital of service of the statutory notice, the complaint would not be maintainable is not an issue which is to be taken into consideration at the stage of summoning, this much is to be seen whether there is a recital about issuance of the notice. The question of service or no service is a matter which is a subject matter of trial. The said issue engaging attention before this Court came up for consideration in Hon'ble Apex Court in 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 Courts 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. Accordingly, no case for interference is made out, the application is rejected. Order Date :- 23.5.2025 Rajesh RAJESH KUMAR High Court of Judicature at Allahabad