Soni Nishad v. Dheeraj Pandey), Section

1. Heard Sri Manoj Kumar, learned counsel for the applicant as well as Sri Kripa Shankar, learned AGA for the State.

2. This application u/s 528 of BNSS has been preferred for quashing the entire proceedings of Complaint Case No.42387 of 2022 (Soni Nishad Versus Dheeraj Pandey), Section 138 of Negotiable Instruments relating to Police Station Pipraich, District Gorakhpur pending in the court of Additional Under Chief Judicial Magistrate-III, Gorakhpur well summoning as the passed by dated order Additional Chief Act as 28.04.2023 Judicial Magistrate-III, Gorakhpur in Complaint Case No.42387 of 2022 (Soni Nishad Versus Dheeraj Pandey).

3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no. 2 on 17.11.2022 against the applicant with an allegation that the opposite party no. 2, brother (maternal) was a graduate, however, the applicant herein assured to get a job and post selling of an agricultural firm, Rs. 6,00,000/- were paid to the applicant, however, neither the job was offered and a cheque was drawn bearing no. 000015 dated 20.09.2022 which was dishonored on 27.09.2022 statutory notice was issued on 22.10.2022 and complaint was filed on 17.11.2022. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reason. Firstly, there is no reference to the date on which the statutory notice was served which was a requirement to have been recited in the complaint and secondly, there is no legal enforceable debt so as to attract Section 138 of the NI as the transaction for which the money is alleged to have been paid by immoral transaction which does not in any manner whatsoever seeks to apply the provisions of Section 138 of the NI Act. Lastly, he submits that the said cheque was taken forcefully by the police and he has not issued the cheque according to his sweet will.

4. Learned AGA has opposed the application.

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

6. The sole question which arises for determination is the extent of judicial intervention at this stage. Apparently, the allegations contained in the complaint is referable to drawing of a cheque of an amount of Rs. 6,00,00/- which stood dishonored. Though the learned counsel for the applicant has argued that since the said amount for which the cheque was drawn was for immoral activity, thus, the provisions of Sections 138 of NI Act would not apply is not concerned, the same is not convincible particularly when there happens to be a presumption under Section 139 of the NI Act. Moreover, once the applicant has drawn a cheque and the same stood dishonored then obviously, the attributes of Section 138 of the NI Act would apply. As regards the submission of the learned counsel for the applicant that the statutory legal notice was issued on 22.10.2022 but there is no date of service upon the applicant, thus, the complaint is not maintainable is concerned, the same is out of context as the law in this regard is no more res integra as 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 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."

7. In absence of pointing out any jurisdictional error, this Court is not required to entertain the present application.

8. Accordingly, no ground is made out for interference, the application is consigned to record. Order Date :- 5.5.2025 Rajesh RAJESH KUMAR High Court of Judicature at Allahabad

1. Heard Sri Manoj Kumar, learned counsel for the applicant as well as Sri Kripa Shankar, learned AGA for the State.

2. This application u/s 528 of BNSS has been preferred for quashing the entire proceedings of Complaint Case No.42387 of 2022 (Soni Nishad Versus Dheeraj Pandey), Section 138 of Negotiable Instruments relating to Police Station Pipraich, District Gorakhpur pending in the court of Additional Under Chief Judicial Magistrate-III, Gorakhpur well summoning as the passed by dated order Additional Chief Act as 28.04.2023 Judicial Magistrate-III, Gorakhpur in Complaint Case No.42387 of 2022 (Soni Nishad Versus Dheeraj Pandey).

3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no. 2 on 17.11.2022 against the applicant with an allegation that the opposite party no. 2, brother (maternal) was a graduate, however, the applicant herein assured to get a job and post selling of an agricultural firm, Rs. 6,00,000/- were paid to the applicant, however, neither the job was offered and a cheque was drawn bearing no. 000015 dated 20.09.2022 which was dishonored on 27.09.2022 statutory notice was issued on 22.10.2022 and complaint was filed on 17.11.2022. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reason. Firstly, there is no reference to the date on which the statutory notice was served which was a requirement to have been recited in the complaint and secondly, there is no legal enforceable debt so as to attract Section 138 of the NI as the transaction for which the money is alleged to have been paid by immoral transaction which does not in any manner whatsoever seeks to apply the provisions of Section 138 of the NI Act. Lastly, he submits that the said cheque was taken forcefully by the police and he has not issued the cheque according to his sweet will.

4. Learned AGA has opposed the application.

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

6. The sole question which arises for determination is the extent of judicial intervention at this stage. Apparently, the allegations contained in the complaint is referable to drawing of a cheque of an amount of Rs. 6,00,00/- which stood dishonored. Though the learned counsel for the applicant has argued that since the said amount for which the cheque was drawn was for immoral activity, thus, the provisions of Sections 138 of NI Act would not apply is not concerned, the same is not convincible particularly when there happens to be a presumption under Section 139 of the NI Act. Moreover, once the applicant has drawn a cheque and the same stood dishonored then obviously, the attributes of Section 138 of the NI Act would apply. As regards the submission of the learned counsel for the applicant that the statutory legal notice was issued on 22.10.2022 but there is no date of service upon the applicant, thus, the complaint is not maintainable is concerned, the same is out of context as the law in this regard is no more res integra as 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 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."

7. In absence of pointing out any jurisdictional error, this Court is not required to entertain the present application.

8. Accordingly, no ground is made out for interference, the application is consigned to record. Order Date :- 5.5.2025 Rajesh RAJESH KUMAR High Court of Judicature at Allahabad