Devnath Singh v. Suresh Kumar) under Section
Case Details
Neutral Citation No. - 2025:AHC:87697 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 18700 of 2025
Legal Reasoning
Applicant :- Suresh Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ravindra Prakash Srivastava Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Ravindra Prakash Srivastava, learned counsel for the applicants as well as Sri Moti Lal, learned AGA for the State/opposite party no.1. 2. This application under Section 528 of the B.N.S.S. has been filed by the applicant to quash the summoning order dated 20.3.2025 as well as entire proceedings of Complaint Case No. 68278 of 2024 (Devnath Singh Vs. Suresh Kumar) under Section 138 N.1. Act, Police Station-Nagar, District-Basti pending before the court of learned Judicial Magistrate-I, Court No.12, Basti and all consequential proceedings thereon in the interest of Justice 3. The case of the applicant is that the opposite party no.2 had lodged a complaint under Section 138 of the N.I. Act dated 5.12.2024 with an allegation that with discharge of the liability a cheque bearing no.077701 dated 23.10.2024 of Rs.2 lakh was drawn by the applicant in favour of the opposite party no.2 on presentation in the bank on 25.10.2024 was dishonoured followed by a statutory demand notice dated 16.11.2024 and a complaint on 5.12.2024 thereafter, the applicant has been summoned on 20.3.2025, under Section 138 of the N.I. Act. 4. Questioning the summoning order, the applicant has preferred the present application. 5. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason that though in the complaint in para 7, it is stated that a statutory notice dated 16.11.2024 was issued to the applicant but there is no recital about the fact that as to when the said notice was served upon the applicant. He seeks to rely upon the document at page 26 and 28 of the paper book so as to contend that the notice was not served upon the applicant. According to him once the statutory notice was not served on account of incomplete address then in these circumstances the complaint is bound to fail. 6. Learned AGA on the other hand has opposed the application while contending that once a cheque stood drawn that the presumption under Section 139 of the N.I. Act would be in favour of the holder. 7. I have heard the submissions so made across the bar and perused the record carefully. Apparently a cheque bearing no.077701 dated 23.10.2024 was drawn by the applicant of an amount of Rs.2 lakh which was dishonoured on 25.10.2024 and a statutory notice is stated to have been issued on 16.11.2024 as per the recital contained in para 7 of the complaint. The arguments so sought to be raised by the learned counsel for the applicant that the notice has not been received as the address was incomplete, cannot be accepted for the simple reason that the address mentioned in the complaint is house no.3, Company Bagh, Post Gandhi Nagar, Police Station Kotwali, District Basti and in the present application at page 5 the same address finds place. Apart from the same in view of the law laid down by the Hon'ble Apex Court in the case of Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685, the mere non-recital of the date of the service of the notice would not be a ground to throttle the investigation at the summoning stage as it was held as under in para 10 and 11:- "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." 8. Once as per the own showing of the applicant in the description so given by him at page-5 of the application under Section 528, the address is the same which is mentioned in the complaint then obviously and in absence of anything being brought on record except the allegation that address is incomplete would not be a ground to throttle the proceedings. Even otherwise the Court finds that in Annexure-1 at page 16 also depicts that in the statutory notice the address of the applicant as house no.3 Company Bagh, Post Gandhi Nagar, Police Station Kotwali District Basti once the address does not appear to be a different address as mentioned in page 5 of the present application. Thus no case is made out for interference. The application stands rejected. 9. Learned counsel for the applicant seeks direction for bail. 10. 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 :- 23.5.2025 piyush Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad