Bal Kishan Gupta v. Sunil), under Section

1. Heard Sri Alok Singh, learned counsel for the applicant as well as Sri Vikas Sharma, learned State Law Officer for the State/opposite party no.1.

2. This application under Section 528 of the BNSS has been filed by the applicant to quash the summoning order dated 28.3.2024 as well as entire proceedings of Complaint Case No.5415 of 2024 (Bal Kishan Gupta Vs. Sunil), under Section 138 of the N.I. Act, Police Station Sadar Bazar, District Agra, pending in the court of learned Additional Chief Judicial Magistrate, Court No.7, Agra.

3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party No. 2 on 6.01.2024 under Section 138 of the N.I. Act against the applicant with an allegation that the applicant had drawn a cheque bearing No.11666 dated Rs. 10.10.2023 of an amount of Rs.10 lakhs which when presented in the bank on 20.10.2023 was dishonoured on 21.10.2023, information whereof was given on 23.10.2023 and on the assurance of the applicant, the cheque was again presented in the bank on 2.12.2023 which was dishonoured on the ground of insufficient fund on 5.12.2023, information was given on 6.12.2023 and statutory notice was issued on 8.12.2023 and the complaint was lodged on 6.01.2024. Thereafter, on 28.03.2024, the applicant has been summoned by the Court of Additional Chief Judicial Magistrate, Court No.7, Agra under Section 138 of the N.I. Act.

4. Learned counsel for the applicant has submitted that the summoning order dated 28.03.2024 cannot be sustained for more than one reason. Though in para-9 of the complaint, it has been alleged that a statutory demand notice was issued on 8.12.2023 but no date has been mentioned of the service of the statutory notice upon the applicant. Only this much has been recited that the applicant refused to pay the said amount. Secondly, out of the total amount of Rs.10 lakhs, the applicant herein has already made payment of Rs.9,18,805. Thus, no legally enforceable debt or liability stood on the date of the maturity of the said cheque. It is thus prayed that the summoning order be set aside.

5. Learned State Law Officer on the other hand submits that once the factum of issuance of drawing of the cheque has not been disputed and the same stood dishonoured, then the presumption under section 139 of the N.I. Act would be in favour of the holder.

6. I have heard submission so made across the bar and perused the record carefully. Apparently, the allegations contained in the complaint dated 6.01.2024 is regarding the dishonour of a cheque of an amount of Rs.10 lakhs. The contention raised by the learned counsel for the applicant that since no date of service of the statutory notice has been mentioned, which is a mandatory requirement, thus the complaint is bound to fail is not convincible at this stage of summoning particularly when the issue of service or not is a matter of trial which cannot be gone into at the stage of summoning.

7. 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."had the occasion to consider the set aspect and it was observed that others did not agree.

8. Once the statutory legal notice stood issued then at the stage of summoning, it would be suffice that there has to be a positive assertion that the statutory demand notice was issued. Merely because there is no recital in the complaint of the date of service would not make the summoning order vitiated as the factum of service of notice or not is a matter of trial.

9. As regards the submission so raised by the learned counsel for the applicant that already an amount of Rs.9,18,805/- stood paid by the applicant, thus no legally enforceable debt particularly is a matter of trial, there is nothing on record to suggest that the said payment was made against the discharge of the liability of the cheque. Whatever arguments are being sought to be raised on the basis of the statements of the bank are the matters of trial, consideration whereof does not arise at this stage.

10. At this juncture, learned counsel for the applicant has submitted that the said cheque was with the opposite party no.2 as security thus, it does not answer the description of legally enforceable debt or liability is concerned, the same is also not liable to be considered at this stage of summoning, particularly, it is a matter of trial. The Hon'ble Apex Court in the case of M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another (2022) 18 SCC 631 has observed as under:. "In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved . that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques."

11. In Sunil Todi and others Vs. State of Gujarat, (2022) 16 SCC 762 the Hon'ble Apex Court has reiterated the aforesaid law.

12. Moreover, it is not the case of the applicant, that the statutory notice was issued on an incorrect address and further, in absence of pointing out of any jurisdictional infirmity, this Court is not required to delve into factual issues in the present proceedings.

13. Accordingly, no case is made out. The application stands rejected. Order Date :- 16.5.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad

1. Heard Sri Alok Singh, learned counsel for the applicant as well as Sri Vikas Sharma, learned State Law Officer for the State/opposite party no.1.

2. This application under Section 528 of the BNSS has been filed by the applicant to quash the summoning order dated 28.3.2024 as well as entire proceedings of Complaint Case No.5415 of 2024 (Bal Kishan Gupta Vs. Sunil), under Section 138 of the N.I. Act, Police Station Sadar Bazar, District Agra, pending in the court of learned Additional Chief Judicial Magistrate, Court No.7, Agra.

3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party No. 2 on 6.01.2024 under Section 138 of the N.I. Act against the applicant with an allegation that the applicant had drawn a cheque bearing No.11666 dated Rs. 10.10.2023 of an amount of Rs.10 lakhs which when presented in the bank on 20.10.2023 was dishonoured on 21.10.2023, information whereof was given on 23.10.2023 and on the assurance of the applicant, the cheque was again presented in the bank on 2.12.2023 which was dishonoured on the ground of insufficient fund on 5.12.2023, information was given on 6.12.2023 and statutory notice was issued on 8.12.2023 and the complaint was lodged on 6.01.2024. Thereafter, on 28.03.2024, the applicant has been summoned by the Court of Additional Chief Judicial Magistrate, Court No.7, Agra under Section 138 of the N.I. Act.

4. Learned counsel for the applicant has submitted that the summoning order dated 28.03.2024 cannot be sustained for more than one reason. Though in para-9 of the complaint, it has been alleged that a statutory demand notice was issued on 8.12.2023 but no date has been mentioned of the service of the statutory notice upon the applicant. Only this much has been recited that the applicant refused to pay the said amount. Secondly, out of the total amount of Rs.10 lakhs, the applicant herein has already made payment of Rs.9,18,805. Thus, no legally enforceable debt or liability stood on the date of the maturity of the said cheque. It is thus prayed that the summoning order be set aside.

5. Learned State Law Officer on the other hand submits that once the factum of issuance of drawing of the cheque has not been disputed and the same stood dishonoured, then the presumption under section 139 of the N.I. Act would be in favour of the holder.

6. I have heard submission so made across the bar and perused the record carefully. Apparently, the allegations contained in the complaint dated 6.01.2024 is regarding the dishonour of a cheque of an amount of Rs.10 lakhs. The contention raised by the learned counsel for the applicant that since no date of service of the statutory notice has been mentioned, which is a mandatory requirement, thus the complaint is bound to fail is not convincible at this stage of summoning particularly when the issue of service or not is a matter of trial which cannot be gone into at the stage of summoning.

7. 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."had the occasion to consider the set aspect and it was observed that others did not agree.

8. Once the statutory legal notice stood issued then at the stage of summoning, it would be suffice that there has to be a positive assertion that the statutory demand notice was issued. Merely because there is no recital in the complaint of the date of service would not make the summoning order vitiated as the factum of service of notice or not is a matter of trial.

9. As regards the submission so raised by the learned counsel for the applicant that already an amount of Rs.9,18,805/- stood paid by the applicant, thus no legally enforceable debt particularly is a matter of trial, there is nothing on record to suggest that the said payment was made against the discharge of the liability of the cheque. Whatever arguments are being sought to be raised on the basis of the statements of the bank are the matters of trial, consideration whereof does not arise at this stage.

10. At this juncture, learned counsel for the applicant has submitted that the said cheque was with the opposite party no.2 as security thus, it does not answer the description of legally enforceable debt or liability is concerned, the same is also not liable to be considered at this stage of summoning, particularly, it is a matter of trial. The Hon'ble Apex Court in the case of M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another (2022) 18 SCC 631 has observed as under:. "In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved . that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques."

11. In Sunil Todi and others Vs. State of Gujarat, (2022) 16 SCC 762 the Hon'ble Apex Court has reiterated the aforesaid law.

12. Moreover, it is not the case of the applicant, that the statutory notice was issued on an incorrect address and further, in absence of pointing out of any jurisdictional infirmity, this Court is not required to delve into factual issues in the present proceedings.

13. Accordingly, no case is made out. The application stands rejected. Order Date :- 16.5.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad