Tejveer v. Shahjad, U/s

1. Heard Sri Alok Kumar, learned counsel for the applicant as well as Sri Pankaj Kumar Rai, learned State Law Officer for the State.

2. This application u/s 528 of BNSS has been preferred to quash the entire proceeding of the summoning order dated 02.12.2021 in Complaint Case/ Criminal Misc. Cases no. 823 of 2021, Tejveer Versus Shahjad, U/s 138 N.I. Act, P.S. - Binauli, District Baghpat.

3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no. 2 on 02.07.2021 with an allegation that with respect to discharge of a liability of Rs. 4,00,000/- a cheque came to be drawn by the applicant bearing no. 200991 on 02.04.2021 which on presentation in the bank came to be dishonored on 06.04.2021 thereafter again the said cheque was presented on 01.06.2021 which came to be dishonored on 02.06.2021 and a statutory demand notice came to be issued on 10.06.2021 followed by a complaint on 02.07.2021 and the applicant came to be summoned on 02.12.2021 under Section 138 of the NI Act. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason the in paragraph no. 9 of the complaint only this much has been asserted that the statutory demand notice was issued on 10.06.2021 but there is no recital of the date on which the said notice came to be served upon the applicant, he, thus, submits that has been infraction of provisions contained under Section 138 read with Section 142 of the NI Act. Reliance has been placed upon a decision of the Coordinate Bench in Application u/s 482 No. 33242 of 2024 decided on 29.11.2024.

4. Learned State Law Officer, on the other hand, submits that once a cheque stood drawn and dishonored then presumption is in favour of the holder, he further submits that this much at the stage of summoning is material that there should be a specific recital about the issuance of the statutory demand notice but so far as service or non-service is concerned, the same is a matter of trial.

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

6. Apparently, a cheque stood drawn which on two occasions stood dishonored. The question as to whether the statutory demand notice was actually served or not though it is stated to be dated 10.06.2021 as there is no recital contained in the complaint would not be a factor so as to make the summoning order fatal as 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."

7. In view of the law laid down in Ajeet Seeds (supra) the only requirement so as to satisfy the legality on prima facie basis of the summoning order would be a recital about issuance of the demand notice, the question of service or non-service is a subject matter of trial. Moreover, the presumption under Section 139 of the NI Act is always there.

8. Accordingly, no ground is made out for interference, the application is consigned to record. Order Date :- 7.7.2025 Rajesh RAJESH KUMAR High Court of Judicature at Allahabad

1. Heard Sri Alok Kumar, learned counsel for the applicant as well as Sri Pankaj Kumar Rai, learned State Law Officer for the State.

2. This application u/s 528 of BNSS has been preferred to quash the entire proceeding of the summoning order dated 02.12.2021 in Complaint Case/ Criminal Misc. Cases no. 823 of 2021, Tejveer Versus Shahjad, U/s 138 N.I. Act, P.S. - Binauli, District Baghpat.

3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no. 2 on 02.07.2021 with an allegation that with respect to discharge of a liability of Rs. 4,00,000/- a cheque came to be drawn by the applicant bearing no. 200991 on 02.04.2021 which on presentation in the bank came to be dishonored on 06.04.2021 thereafter again the said cheque was presented on 01.06.2021 which came to be dishonored on 02.06.2021 and a statutory demand notice came to be issued on 10.06.2021 followed by a complaint on 02.07.2021 and the applicant came to be summoned on 02.12.2021 under Section 138 of the NI Act. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason the in paragraph no. 9 of the complaint only this much has been asserted that the statutory demand notice was issued on 10.06.2021 but there is no recital of the date on which the said notice came to be served upon the applicant, he, thus, submits that has been infraction of provisions contained under Section 138 read with Section 142 of the NI Act. Reliance has been placed upon a decision of the Coordinate Bench in Application u/s 482 No. 33242 of 2024 decided on 29.11.2024.

4. Learned State Law Officer, on the other hand, submits that once a cheque stood drawn and dishonored then presumption is in favour of the holder, he further submits that this much at the stage of summoning is material that there should be a specific recital about the issuance of the statutory demand notice but so far as service or non-service is concerned, the same is a matter of trial.

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

6. Apparently, a cheque stood drawn which on two occasions stood dishonored. The question as to whether the statutory demand notice was actually served or not though it is stated to be dated 10.06.2021 as there is no recital contained in the complaint would not be a factor so as to make the summoning order fatal as 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."

7. In view of the law laid down in Ajeet Seeds (supra) the only requirement so as to satisfy the legality on prima facie basis of the summoning order would be a recital about issuance of the demand notice, the question of service or non-service is a subject matter of trial. Moreover, the presumption under Section 139 of the NI Act is always there.

8. Accordingly, no ground is made out for interference, the application is consigned to record. Order Date :- 7.7.2025 Rajesh RAJESH KUMAR High Court of Judicature at Allahabad