Nazakat Ali v. Smt. Rajwati and another under section

Applicant :- Smt. Rajwati And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashok Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.

1. Supplementary Affidavit filed today is taken on record.

2. Heard Sri Ashok Kumar Singh, learned counsel for the applicants, who are two in number, and Sri S.P. Singh, learned State Law Officer for the State.

3. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 30.7.2024 passed by learned Judicial Magistrate, Hasanpur, Amroha and entire proceedings of complaint case no. 1347/2024 Nazakat Ali vs. Smt. Rajwati and another under section 138 Negotiable Instruments Act Police Station Hasanpur District Amroha.

4. The case of the applicant is that on 27.06.2024, a complaint was lodged by O.P. No.2 against the applicants, Smt. Rajwati and Rishipal Gurjar, who were arraigned as accused nos. 1 and 2 in the complaint with an allegation that with respect to discharge of a liability, which was on the shoulder of the applicant no.2, Rishipal Gurjar, who was arraigned as accused no.2, on his instructions, a cheque of an amount of Rs.3,38,000/- came to be drawn by the applicant accused no.1, Smt. Rajwati bearing number "000013" dated 02.03.2024, which on presentation in the bank came to be dishonoured on 29.05.2024 with the remark 'payment stopped by the drawer' followed by statutory demand notice dated 31.05.2024 and a complaint under Section 138 of the Act on 27.06.2024. Thereafter on 30.07.2024, the applicants came to be summoned under Section 138 of the N.I. Act.

5. Learned counsel for the applicants has submitted that the summoning order cannot be sustained for more than one reason, firstly the cheque was drawn by the applicant-accused no.1 Smt. Rajwati wife of Rishipal Gurjar on behalf of M/s Kanha Constructions and thus M/s Kanha Constructions ought to have been arraigned as an accused and since it has not been arraigned as an accused, thus there is a clear infraction of the provisions of Section 141 of the N.I. Act and secondly, though in para-11, a recital has been made that a statutory demand notice came to be issued on 31.05.2024, but there is no recital about the service of the same, which makes the entire proceedings vitiated. Further submission is that applicant-accused no.2 Rishipal Gurjar is not a signatory to the cheque, thus no offences under Section 138 of the N.I. Act would be attracted.

6. Learned State Law Officer for the State on the other hand submits that once the cheque stood drawn, presumption under Section 139 of the N.I. Act would be there.

7. I have heard the submissions so raised across the Bar and perused the records carefully.

8. Apparently, in the complaint under Section 138 of the N.I. Act lodged by O.P. No.2 on 27.06.2024 against the applicants herein, being Smt. Rajwati (applicant no.1) and Rishipal Gurjar (applicant no.2) has been arraigned as accused and a perusal of the cheque would reveal that the same came to be drawn by the applicant accused no.1 Smt. Rajwati. A perusal of page-9 of the Supplementary Affidavit filed today, shows that M/s Kanha Construction happens to be a sole proprietorship firm and Smt. Rajwati wife of Rishipal Gurjar happens to be the sole proprietor. Thus the provisions contained under Section 141 of the N.I. Act would not come into play, particularly, when the same stands applied to a company or a partnership firm wherein directors become partners. There is no difference between the sole proprietorship firm and the proprietor and they are one and the same. Law in this regard is well crystallized in the judgment of a coordinate Bench of this Court in Abhishek Jain Vs.State of U.P., Criminal Application u/s 482 CrPC No.27006 of 2015 decided on 15.12.2020, wherein following was observed:- "16. From the aforesaid observations made by the Apex Court, it is crystal clear that if the cheque is issued in the name of a firm, whether proprietorship or partnership firm, the proprietor or the partner as the case may be, becomes the holder in due course and he can sue in his own name and it is not necessary for him to sue in a trading name, though others can sue such firm in the trading name. Therefore, the instant complaint filed by the opposite party no.2, claiming himself to be a proprietor of the said firm in whose name the said cheque is issued by the applicant herein, in the considered opinion of this Court, complaint is maintainable. Even if the contention of applicant be accepted that the said Raj Rajeshwari Enterprises is a partnership and not a proprietorship firm, it will not help the applicant herein as even the partnership firm does not have a different legal identity and is not a juristic person. Therefore, a partner of the firm also becomes the holder in due course of the cheque within the meaning of Section 142 (1) of the N.I. Act. Thus, the complaint even on behalf of the partner of a firm in his own name is maintainable. Otherwise, also in the instant case, the applicant does not dispute that the cheque was issued in the name of the said Raj Rajeshwari Enterprises and the said cheque was dishonoured and demand notice was issued by the opposite party no.2, he has failed to comply with the said notice. Therefore, in view of the presumption under Section 139 of the N.I. Act and as per the law laid down by the Apex Court, this Court does not find any good ground to interfere in the instant case in exercise of jurisdiction under Section 482 Cr.P.C."

9. Importantly, the applicant-accused no.1, Smt. Rajwati wife of Rishipal Gurjar had drawn a cheque and she being an authorized signatory of the cheque itself in the event of dishonour is exposed to the rigors of the provisioins contained under Section 138 of the N.I. Act and thus there is no infirmity in summoning the applicant- accused Rishipal Gurjar. As regards the submission that though in the complaint there is only a recital to the effect that on 31.05.2024, a statutory demand notice came to be issued, but there is no date of service mentioned, thus the complaint is bound to fail, is not convincible, particularly when what is required and suffice would be issuance of a statutory demand notice and the question whether it has been served or not is a matter of trial. The Hon'ble Apex Court in the case of Ajeet Seeds Ltd. Vs. K. Gopala Krishnaiah, (2014) 12 SCC 685, in paragraph-10 and 11 has held 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. In so far as Rishipal Gurjar, second applicant, is concerned, he is not a signatory to the cheque and in para-5 of the complaint, it has been averred as under: - "5. सस० 1 50200086783331 कव अकभययकव सस० 1 यह कक पररववदद नन अकभययक सस० 2 कक बवत कक मवन ललयव तक अकभययक सस० 2 नन अपनद पतनद अकभययकव कव चचक पररववदद कक कदनवसक 02.03.2024 कक चचक सस० 000013 कन खवतव सस० एच०डद०एफ०सद० बबक शवखव अननपशहर जनपद बयलनदशहर कव रकम 3,38,000/ र0 सन हसतवकर करव कर दन कदयव और पररववदद कक कवशवस कदलवयव कक उक खवतन मम उक चचक अकभययकव सस० 1 कन भयगतवन हनतय पयवरप रकम 20-25 कदन मम आ जवयनगद ..."

11. A perusal of para-5 of the complaint would reveal that on the instructions of the applicant-accused no.2 Rishipal Gurjar, cheque stood drawn by Smt. Rajwati, applicant accused no.1, in favour of O.P. No.2, which came to be dishonoured. Since Rishipal Gurjar son of Chhidda Singh is not a signatory to the cheque, thus no offences can be said to be made out against the second applicant Rishipal Gurjar son of Chhidda Singh. Reliance has been placed on the judgment passed in Aparna A.Shah vs M/S Sheth Developers P. Ltd. & Anr, Criminal Appeal No. 813 of 2013 decided on 01.07.2013, wherein following was observed: - "22. In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains name of the appellant and her husband, the fact remains that her husband alone put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in- chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque."

12. Accordingly, the application is being decided on the following terms:- (a) The summoning order dated 30.07.2024 passed by learned Judicial Magistrate, Hasanpur, Amroha in Complaint Case No. 1347/2024 Nazakat Ali vs. Smt. Rajwati and another, under Section 138 Negotiable Instruments Act, in so far as it pertains to Rishipal Gurjar son of Chhidda Singh, second applicant is set aside. (b) The summoning order against the first applicant Smt. Rajwati wife of Rishipal Gurjar is upheld. The court below shall proceed against the first applicant-Smt. Rajwati.

13. Accordingly, the application stands partly allowed. Order Date :- 20.8.2025 N.S.Rathour (Vikas Budhwar, J) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad

Applicant :- Smt. Rajwati And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashok Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.

1. Supplementary Affidavit filed today is taken on record.

2. Heard Sri Ashok Kumar Singh, learned counsel for the applicants, who are two in number, and Sri S.P. Singh, learned State Law Officer for the State.

3. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 30.7.2024 passed by learned Judicial Magistrate, Hasanpur, Amroha and entire proceedings of complaint case no. 1347/2024 Nazakat Ali vs. Smt. Rajwati and another under section 138 Negotiable Instruments Act Police Station Hasanpur District Amroha.

4. The case of the applicant is that on 27.06.2024, a complaint was lodged by O.P. No.2 against the applicants, Smt. Rajwati and Rishipal Gurjar, who were arraigned as accused nos. 1 and 2 in the complaint with an allegation that with respect to discharge of a liability, which was on the shoulder of the applicant no.2, Rishipal Gurjar, who was arraigned as accused no.2, on his instructions, a cheque of an amount of Rs.3,38,000/- came to be drawn by the applicant accused no.1, Smt. Rajwati bearing number "000013" dated 02.03.2024, which on presentation in the bank came to be dishonoured on 29.05.2024 with the remark 'payment stopped by the drawer' followed by statutory demand notice dated 31.05.2024 and a complaint under Section 138 of the Act on 27.06.2024. Thereafter on 30.07.2024, the applicants came to be summoned under Section 138 of the N.I. Act.

5. Learned counsel for the applicants has submitted that the summoning order cannot be sustained for more than one reason, firstly the cheque was drawn by the applicant-accused no.1 Smt. Rajwati wife of Rishipal Gurjar on behalf of M/s Kanha Constructions and thus M/s Kanha Constructions ought to have been arraigned as an accused and since it has not been arraigned as an accused, thus there is a clear infraction of the provisions of Section 141 of the N.I. Act and secondly, though in para-11, a recital has been made that a statutory demand notice came to be issued on 31.05.2024, but there is no recital about the service of the same, which makes the entire proceedings vitiated. Further submission is that applicant-accused no.2 Rishipal Gurjar is not a signatory to the cheque, thus no offences under Section 138 of the N.I. Act would be attracted.

6. Learned State Law Officer for the State on the other hand submits that once the cheque stood drawn, presumption under Section 139 of the N.I. Act would be there.

7. I have heard the submissions so raised across the Bar and perused the records carefully.

8. Apparently, in the complaint under Section 138 of the N.I. Act lodged by O.P. No.2 on 27.06.2024 against the applicants herein, being Smt. Rajwati (applicant no.1) and Rishipal Gurjar (applicant no.2) has been arraigned as accused and a perusal of the cheque would reveal that the same came to be drawn by the applicant accused no.1 Smt. Rajwati. A perusal of page-9 of the Supplementary Affidavit filed today, shows that M/s Kanha Construction happens to be a sole proprietorship firm and Smt. Rajwati wife of Rishipal Gurjar happens to be the sole proprietor. Thus the provisions contained under Section 141 of the N.I. Act would not come into play, particularly, when the same stands applied to a company or a partnership firm wherein directors become partners. There is no difference between the sole proprietorship firm and the proprietor and they are one and the same. Law in this regard is well crystallized in the judgment of a coordinate Bench of this Court in Abhishek Jain Vs.State of U.P., Criminal Application u/s 482 CrPC No.27006 of 2015 decided on 15.12.2020, wherein following was observed:- "16. From the aforesaid observations made by the Apex Court, it is crystal clear that if the cheque is issued in the name of a firm, whether proprietorship or partnership firm, the proprietor or the partner as the case may be, becomes the holder in due course and he can sue in his own name and it is not necessary for him to sue in a trading name, though others can sue such firm in the trading name. Therefore, the instant complaint filed by the opposite party no.2, claiming himself to be a proprietor of the said firm in whose name the said cheque is issued by the applicant herein, in the considered opinion of this Court, complaint is maintainable. Even if the contention of applicant be accepted that the said Raj Rajeshwari Enterprises is a partnership and not a proprietorship firm, it will not help the applicant herein as even the partnership firm does not have a different legal identity and is not a juristic person. Therefore, a partner of the firm also becomes the holder in due course of the cheque within the meaning of Section 142 (1) of the N.I. Act. Thus, the complaint even on behalf of the partner of a firm in his own name is maintainable. Otherwise, also in the instant case, the applicant does not dispute that the cheque was issued in the name of the said Raj Rajeshwari Enterprises and the said cheque was dishonoured and demand notice was issued by the opposite party no.2, he has failed to comply with the said notice. Therefore, in view of the presumption under Section 139 of the N.I. Act and as per the law laid down by the Apex Court, this Court does not find any good ground to interfere in the instant case in exercise of jurisdiction under Section 482 Cr.P.C."

9. Importantly, the applicant-accused no.1, Smt. Rajwati wife of Rishipal Gurjar had drawn a cheque and she being an authorized signatory of the cheque itself in the event of dishonour is exposed to the rigors of the provisioins contained under Section 138 of the N.I. Act and thus there is no infirmity in summoning the applicant- accused Rishipal Gurjar. As regards the submission that though in the complaint there is only a recital to the effect that on 31.05.2024, a statutory demand notice came to be issued, but there is no date of service mentioned, thus the complaint is bound to fail, is not convincible, particularly when what is required and suffice would be issuance of a statutory demand notice and the question whether it has been served or not is a matter of trial. The Hon'ble Apex Court in the case of Ajeet Seeds Ltd. Vs. K. Gopala Krishnaiah, (2014) 12 SCC 685, in paragraph-10 and 11 has held 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. In so far as Rishipal Gurjar, second applicant, is concerned, he is not a signatory to the cheque and in para-5 of the complaint, it has been averred as under: - "5. सस० 1 50200086783331 कव अकभययकव सस० 1 यह कक पररववदद नन अकभययक सस० 2 कक बवत कक मवन ललयव तक अकभययक सस० 2 नन अपनद पतनद अकभययकव कव चचक पररववदद कक कदनवसक 02.03.2024 कक चचक सस० 000013 कन खवतव सस० एच०डद०एफ०सद० बबक शवखव अननपशहर जनपद बयलनदशहर कव रकम 3,38,000/ र0 सन हसतवकर करव कर दन कदयव और पररववदद कक कवशवस कदलवयव कक उक खवतन मम उक चचक अकभययकव सस० 1 कन भयगतवन हनतय पयवरप रकम 20-25 कदन मम आ जवयनगद ..."

11. A perusal of para-5 of the complaint would reveal that on the instructions of the applicant-accused no.2 Rishipal Gurjar, cheque stood drawn by Smt. Rajwati, applicant accused no.1, in favour of O.P. No.2, which came to be dishonoured. Since Rishipal Gurjar son of Chhidda Singh is not a signatory to the cheque, thus no offences can be said to be made out against the second applicant Rishipal Gurjar son of Chhidda Singh. Reliance has been placed on the judgment passed in Aparna A.Shah vs M/S Sheth Developers P. Ltd. & Anr, Criminal Appeal No. 813 of 2013 decided on 01.07.2013, wherein following was observed: - "22. In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains name of the appellant and her husband, the fact remains that her husband alone put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in- chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque."

12. Accordingly, the application is being decided on the following terms:- (a) The summoning order dated 30.07.2024 passed by learned Judicial Magistrate, Hasanpur, Amroha in Complaint Case No. 1347/2024 Nazakat Ali vs. Smt. Rajwati and another, under Section 138 Negotiable Instruments Act, in so far as it pertains to Rishipal Gurjar son of Chhidda Singh, second applicant is set aside. (b) The summoning order against the first applicant Smt. Rajwati wife of Rishipal Gurjar is upheld. The court below shall proceed against the first applicant-Smt. Rajwati.

13. Accordingly, the application stands partly allowed. Order Date :- 20.8.2025 N.S.Rathour (Vikas Budhwar, J) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad