Teekam Singh v. Dinesh) U/S

1. Heard Sri Awadhesh Kumar Mishra, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State.

2. This application u/s 528 of BNSS has been preferred to quash the Impugned Summoning order dated 20.01.2021 passed by Learned Additional Chief Judicial Magistrate, Kasganj, In Criminal Complain Case No.663/2020 (New Case No.165/2024), (Teekam Singh vs Dinesh) U/S-138 N.I Act, at P.S.- Soron, District- Kasganj, pending before Additional Chief Judicial Magistrate, Kasganj, and the entire criminal proceedings of Criminal Complaint Case No.663/2020 (New Case No. 165/2024), (Teekam Singh vs Dinesh) U/S-138 N.I Act, at P.S.-Soron, District-Kasganj, Pending before Additional Chief Judicial Magistrate, Kasganj,

3. Learned counsel for the applicant has submitted that a complaint stood lodged by the opposite party no. 2 under Section 138 of the NI Act on 28.09.2020 with an allegation that with respect to discharge of a liability the applicant herein had drawn a cheque bearing no. 000001 dated 26.08.2020 of Rs. 5,00,000/- which on presentation in the bank on 26.08.2020 came to be dishonored on

27.08.2020 information whereof was made available 29.08.2020 followed by a statutory demand notice dated 08.09.2020 and the complaint on 28.09.2020 and the applicant came to be summoned on 20.01.2021 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 that the statutory demand notice was not served upon the applicant and further the cheques were mis-utilized as it had never been drawn by the applicant. As a matter of fact, the blank cheques were with the opposite party no. 2 with regard to a sort of e-mandate for making payments pursuant to liquidation of a policy.

4. Learned State Law Officer, on the other hand, submits that once the said cheque stood drawn then the presumption under Section 139 of the NI Act would be and whatever arguments are being raised, they are the matter of trial.

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

6. Apparently, as per the allegations contained in the complaint a cheque stood drawn which was dishonored followed by a statutory demand notice and a complaint. The question as to whether the statutory demand notice was served or not is a question of trial and what is to be seen at the stage of summoning would be a recital in the complaint that the statutory demand notice was issued. The question of service or no service is a subject matter of trial. In Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685 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. Apart from the same, the issue with regard to the fact that the cheque has not been drawn and the said cheque was a sample cheque for e-mandate for the payment to be made in the account of the applicant after discharge of a policy is concerned and the same was mis-utilized is a question of trial as the same may be at best a defence whose veracity and magnitude is to be adjudged when the trial commences when a decision is to be of termination or acquittal. The presumption under Section 139 of the NI Act is always there. Apart from this thing, the present application has been preferred in the year 2025 and the summoning order is of the year 2021, there is nothing on record to show any plausible explanation for delay.

8. Accordingly, no good ground to interfere, interference is declined, the application stands disposed of leaving it open for the applicant to take all legal and factual issues while contesting the trial. Order Date :- 28.7.2025 Rajesh RAJESH KUMAR High Court of Judicature at Allahabad

1. Heard Sri Awadhesh Kumar Mishra, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State.

2. This application u/s 528 of BNSS has been preferred to quash the Impugned Summoning order dated 20.01.2021 passed by Learned Additional Chief Judicial Magistrate, Kasganj, In Criminal Complain Case No.663/2020 (New Case No.165/2024), (Teekam Singh vs Dinesh) U/S-138 N.I Act, at P.S.- Soron, District- Kasganj, pending before Additional Chief Judicial Magistrate, Kasganj, and the entire criminal proceedings of Criminal Complaint Case No.663/2020 (New Case No. 165/2024), (Teekam Singh vs Dinesh) U/S-138 N.I Act, at P.S.-Soron, District-Kasganj, Pending before Additional Chief Judicial Magistrate, Kasganj,

3. Learned counsel for the applicant has submitted that a complaint stood lodged by the opposite party no. 2 under Section 138 of the NI Act on 28.09.2020 with an allegation that with respect to discharge of a liability the applicant herein had drawn a cheque bearing no. 000001 dated 26.08.2020 of Rs. 5,00,000/- which on presentation in the bank on 26.08.2020 came to be dishonored on

27.08.2020 information whereof was made available 29.08.2020 followed by a statutory demand notice dated 08.09.2020 and the complaint on 28.09.2020 and the applicant came to be summoned on 20.01.2021 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 that the statutory demand notice was not served upon the applicant and further the cheques were mis-utilized as it had never been drawn by the applicant. As a matter of fact, the blank cheques were with the opposite party no. 2 with regard to a sort of e-mandate for making payments pursuant to liquidation of a policy.

4. Learned State Law Officer, on the other hand, submits that once the said cheque stood drawn then the presumption under Section 139 of the NI Act would be and whatever arguments are being raised, they are the matter of trial.

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

6. Apparently, as per the allegations contained in the complaint a cheque stood drawn which was dishonored followed by a statutory demand notice and a complaint. The question as to whether the statutory demand notice was served or not is a question of trial and what is to be seen at the stage of summoning would be a recital in the complaint that the statutory demand notice was issued. The question of service or no service is a subject matter of trial. In Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685 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. Apart from the same, the issue with regard to the fact that the cheque has not been drawn and the said cheque was a sample cheque for e-mandate for the payment to be made in the account of the applicant after discharge of a policy is concerned and the same was mis-utilized is a question of trial as the same may be at best a defence whose veracity and magnitude is to be adjudged when the trial commences when a decision is to be of termination or acquittal. The presumption under Section 139 of the NI Act is always there. Apart from this thing, the present application has been preferred in the year 2025 and the summoning order is of the year 2021, there is nothing on record to show any plausible explanation for delay.

8. Accordingly, no good ground to interfere, interference is declined, the application stands disposed of leaving it open for the applicant to take all legal and factual issues while contesting the trial. Order Date :- 28.7.2025 Rajesh RAJESH KUMAR High Court of Judicature at Allahabad