Divyansh Yadav v. Shivam Dixit, Under Section

Shikohabad, District- Firozabad including the impugned summoning order dated 23.07.2024 as well as Non Bailable Warrants dated 27.02.2025 passed by the 2nd Additional Civil Judge (Jr. Div.)/ Magistrate, Shikohabad, District- Firozabad, arising out of proceedings U/s 138 of The Negotiable Instrument Act, Police Station- South, District- Firozabad.

4. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no. 2 on 15.05.2024 against the applicant under Section 138 of the N.I. Act that with respect to discharge of liability, a cheque was drawn by the applicant bearing No. 061212 dated 15.04.2024 which when presented in the bank, was dishonored on 16.04.2024 on account of insufficient funds, thereafter a statutory demand notice was issued on 19.04.2024 followed by the complaint under Section 138 of the N.I. Act on

15.05.2024. The Court of 2nd Additional Civil Judge (Jr. Div.)/Magistrate, Shikohabad on 23.07.2024, in Complaint Case No. 34588 of 2024- Divyansh Yadav vs. Shivam Dixit, summoned the applicant under Section 138 of the N.I. Act. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reason, firstly though in para 10 of the complaint, it has been alleged that a statutory demand notice was issued on 19.04.2024 but in absence of any recital about the date of the service of the said notice upon the applicant, the complaint is bound to fail.

5. Submission is that it is a mandatory requirement to recite the date of the service of the statutory notice and in absence of the same, the complaint cannot be proceeded with, secondly a statutory notice has been issued on 19.04.2024 as per para-10 of the complaint, however, in view of Section 27 of the General Clauses Act, if there is no date of service then the service will be deemed to be sufficient after 30 days and after that 15 days, time is to be accorded for making the payment. Contention is that the complaint is stood preferred on 15.05.2024 within a period of less than one month, thus, the proceedings is not maintainable. Reliance has been placed upon the decision of the coordinates Bench of this Court in Application U/S 482 No. 29862 of 2019 (Mohd. Mohsin v. State of U.P.), decided on 09.07.2024 and lastly, it has been submitted that the summoning order is cryptic. It is, thus, prayed that the summoning order be set aside.

6. Countering the submission of the learned counsel for the applicant, learned AGA has submitted that once a cheque drawn by the applicant and the said fact has not been disputed then the presumption under Section 139 of the N.I. Act would always be there in favour of the holder. He further submits that mere non- mention of date of service will not make the complaint not maintainable and once it is not the case of the applicant that the notice bears incorrect address then in the circumstances, no infirmity can be attributed in this regard.

7. I have heard learned counsel for the parties and gone through the records carefully.

8. The sole question which arises for determination in the present proceedings is to the extent of judicial intervention. Apparently, a cheque of an amount of Rs. 8,50,000/- was drawn by the applicant dated 15.04.2012 bearing No. 061212 which on presentation in the bank on 15.04.2024 stood dishonoured on 16.04.2024 on the premise that the funds were insufficient. Thereafter a statutory notice came to be issued on 19.04.2024 followed by the complaint on 15.05.2024. So far as the submission of the learned counsel for the applicant that in absence of any recital of the date of service of the notice, the complaint is not maintainable, suffice is to say that at the stage of summoning of the accused under Section 138 of the N.I. Act, it would be sufficient under law in case an averment is made that the statutory notice has been issued on a particular date. The question as to whether the notice was served or not is a matter of trial. As regards, the further submission of the learned counsel for the applicant that in view of the provisions under Section 27 of the General Clauses Act in absence of recital of the date of the service of the notice, deemed service would be after lapse of 30 days and 15 days period is accorded for making the payment is concerned, the same is not liable to be accepted.

9. 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."

10. The question as to whether the notice is served or not is a matter of trial which cannot be adjudicated or adjudged in the present proceedings at the stage when the summoning order has been issued. So far as the reliance has been placed upon the judgment in the case of Mohd. Mohsin (supra) is concerned, the same may be of no aid to the applicant in view of the judgment of the Hon'ble Apex Court in the case of Ajeet Seeds Ltd. (supra).

11. Moreover, once a cheque stood drawn then the presumption under Section 138 of the N.I. Act is in favour of the holder. Accordingly, no case is made out to interfere at this stage. The application is rejected. Order Date :- 16.5.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad

Shikohabad, District- Firozabad including the impugned summoning order dated 23.07.2024 as well as Non Bailable Warrants dated 27.02.2025 passed by the 2nd Additional Civil Judge (Jr. Div.)/ Magistrate, Shikohabad, District- Firozabad, arising out of proceedings U/s 138 of The Negotiable Instrument Act, Police Station- South, District- Firozabad.

4. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no. 2 on 15.05.2024 against the applicant under Section 138 of the N.I. Act that with respect to discharge of liability, a cheque was drawn by the applicant bearing No. 061212 dated 15.04.2024 which when presented in the bank, was dishonored on 16.04.2024 on account of insufficient funds, thereafter a statutory demand notice was issued on 19.04.2024 followed by the complaint under Section 138 of the N.I. Act on

15.05.2024. The Court of 2nd Additional Civil Judge (Jr. Div.)/Magistrate, Shikohabad on 23.07.2024, in Complaint Case No. 34588 of 2024- Divyansh Yadav vs. Shivam Dixit, summoned the applicant under Section 138 of the N.I. Act. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reason, firstly though in para 10 of the complaint, it has been alleged that a statutory demand notice was issued on 19.04.2024 but in absence of any recital about the date of the service of the said notice upon the applicant, the complaint is bound to fail.

5. Submission is that it is a mandatory requirement to recite the date of the service of the statutory notice and in absence of the same, the complaint cannot be proceeded with, secondly a statutory notice has been issued on 19.04.2024 as per para-10 of the complaint, however, in view of Section 27 of the General Clauses Act, if there is no date of service then the service will be deemed to be sufficient after 30 days and after that 15 days, time is to be accorded for making the payment. Contention is that the complaint is stood preferred on 15.05.2024 within a period of less than one month, thus, the proceedings is not maintainable. Reliance has been placed upon the decision of the coordinates Bench of this Court in Application U/S 482 No. 29862 of 2019 (Mohd. Mohsin v. State of U.P.), decided on 09.07.2024 and lastly, it has been submitted that the summoning order is cryptic. It is, thus, prayed that the summoning order be set aside.

6. Countering the submission of the learned counsel for the applicant, learned AGA has submitted that once a cheque drawn by the applicant and the said fact has not been disputed then the presumption under Section 139 of the N.I. Act would always be there in favour of the holder. He further submits that mere non- mention of date of service will not make the complaint not maintainable and once it is not the case of the applicant that the notice bears incorrect address then in the circumstances, no infirmity can be attributed in this regard.

7. I have heard learned counsel for the parties and gone through the records carefully.

8. The sole question which arises for determination in the present proceedings is to the extent of judicial intervention. Apparently, a cheque of an amount of Rs. 8,50,000/- was drawn by the applicant dated 15.04.2012 bearing No. 061212 which on presentation in the bank on 15.04.2024 stood dishonoured on 16.04.2024 on the premise that the funds were insufficient. Thereafter a statutory notice came to be issued on 19.04.2024 followed by the complaint on 15.05.2024. So far as the submission of the learned counsel for the applicant that in absence of any recital of the date of service of the notice, the complaint is not maintainable, suffice is to say that at the stage of summoning of the accused under Section 138 of the N.I. Act, it would be sufficient under law in case an averment is made that the statutory notice has been issued on a particular date. The question as to whether the notice was served or not is a matter of trial. As regards, the further submission of the learned counsel for the applicant that in view of the provisions under Section 27 of the General Clauses Act in absence of recital of the date of the service of the notice, deemed service would be after lapse of 30 days and 15 days period is accorded for making the payment is concerned, the same is not liable to be accepted.

9. 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."

10. The question as to whether the notice is served or not is a matter of trial which cannot be adjudicated or adjudged in the present proceedings at the stage when the summoning order has been issued. So far as the reliance has been placed upon the judgment in the case of Mohd. Mohsin (supra) is concerned, the same may be of no aid to the applicant in view of the judgment of the Hon'ble Apex Court in the case of Ajeet Seeds Ltd. (supra).

11. Moreover, once a cheque stood drawn then the presumption under Section 138 of the N.I. Act is in favour of the holder. Accordingly, no case is made out to interfere at this stage. The application is rejected. Order Date :- 16.5.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad