Pradeep kumar v. Smt Shashi Prabha Soni under Sections
Case Details
Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 26676 of 2025 Neutral Citation No. - 2025:AHC:123518 Applicant :- Smt Sashi Prabha Soni Opposite Party :- State of U.P. and Another Counsel for Applicant :- G.S. Chauhan Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
Legal Reasoning
1. Heard Sri J.S. Chauhan, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State. 2. This is an application under Section 482 of CrPC preferred by the applicant for quashing the complaint dated 03.03.2020 and summoning order dated 03.11.2021 as well as entire proceedings registered in its pursuance as criminal complaint Case No. 4667 of 2020 (Pradeep kumar Vs Smt Shashi Prabha Soni under Sections 138 of N.I. Act, Police Station- Kotwali, District Jhansi, pending before the court of Learned Civil Judge (J.D), FTC(14th Finance Pay Scheme)/ J.M Jhansi, District Etawa, including summoning order dated 1.3.2024 passed by Learned Civil Judge (J.D), FTC(14th Finance Pay Scheme)/ J.M,Jhansi, and all consequential proceedings thereon. 3. Learned counsel for the applicant has submitted that a complaint was lodged by the O.P. No.2 on 03.03.2020 with reference to dishonour of a cheque bearing number "410776" of an amount Rs.4,00,000/- dated 15.01.2020, which on presentation in the bank came to be dishonoured on 24.01.2020 with remarks 'funds insufficient'. Thereafter a statutory demand notice was issued on 07.02.2020 and while incorrectly reciting the fact that the said notice was refused to be received, the complaint stood preferred on 03.03.2020 and the applicant came to be summoned on 03.11.2021. Learned counsel for the applicant submits that the summoning order cannot be sustained for more than one reason, particularly when, an incorrect assertion has been made in the complaint that the statutory demand notice was issued on 07.02.2020, which the applicant refused. There is nothing on record to show any refusal and secondly while inviting the attention of the Court towards para-11, it is asserted that the O.P. No.2 is a clerk in the office of the Food Safety and Drug Administration, Jhansi and the applicant had good relation with O.P. No.2, in pursuance whereto the O.P. No.2 visited the house of the applicant and stole the cheque. 4. Learned State Law Officer on the other hand submits that the issue as to whether the statutory demand notice was actually received or refused to be received, is a matter of trial and further he submits that the issue with regard to personal relationship or stealing of cheque is a matter of defence. 5. I have heard submissions so made across the Bar and perused the record carefully. 6. Apparently, with respect to the dishonour of the cheque followed by statutory demand notice, the complaint stood preferred. The question as to whether the statutory demand notice was actually served, refused or not is a question 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." 7. As regards the submission of the learned counsel for the applicant that the said cheque was stolen by O.P. No. 2, as he used to frequently visit the house of the applicant is concerned, the same at best is a matter of defence, which can be raised, when the trial commences, however, the presumption under Section 139 of the N.I. Act is always there. Even otherwise, the Court finds that the summoning order is of the year 2021 and the application has been preferred in the year 2025, of which there is no plausible explanation for delay.
Decision
8. Accordingly, interference is declined. The application is disposed of leaving it open to the applicant to contest the trial before the court below while taking all the legal and factual grounds and this Court has no reason to disbelieve that the court below shall consider the same in correct perspective. Order Date :- 28.7.2025 N.S.Rathour (Vikas Budhwar, J) Digitally signed by :- NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad