Hardayal v. Jitendra Singh), under section

1. Heard Sri Narendra Kumar, learned counsel for the applicant and Sri J.P. Gupta, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 09.07.2024 passed by Civil Judge (Junior Division)/Judicial Magistrate, Mau Ranipur, Jhansi in Complaint Case no. 2561 of 2024 (Hardayal Vs. Jitendra Singh), under section 138, of Negotiable Instruments Act, Police Sation Uldan District 100 Jhansi, as well as impugned order dated 15.3.2024 passed by Special Judge (द०प०कक०), Jhansi in Complaint Case (Hardayal Vs. Jitendra Singh), under section 138, of Negotiable Instruments Act, Police Station Uldan District Jhansi alongwith the further proceeding of Complaint Case no. 2561 of 2024 (Hardayal Vs. Jitendra Singh), under section 138, of Negotiable Instruments Act, Police Sation Uldan District Jhansi, as well as N.B.W. Order dated 28.4.2025.

3. The case of the applicant is that a complaint stood lodged by O.P. No.2 on 15.4.2024 against the applicant under Section 138 of N.I. Act, wherein allegation is that with respect to discharge of a liability to the applicant herein had drawn a cheque bearing number "462016" of an amount of Rs.7,00,000/- which on presentation in the bank came to be dishonoured on 8.12.2023 followed by a statutory demand notice on 6.01.2024 and on the assurance of the applicant he again presented the cheque in the bank a complaint under Section 138 of the N.I. Act on 23.2.2024 which came to be dishonoured followed by a statutory demand notice dated 12.3.2024 and the complaint on 15.4.2024 and the applicant came to be summoned on 9.7.2024 under Section 138 of N.I. Act.

4. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason that though there is a recital in the complaint that the statutory demand notice came to be issued but there is no date of service of the statutory demand notice and actually the statutory demand notice was not served upon the applicant. He has thus submitted that there has been a clear infraction of provisions of Section 138 read with Section 142 of the N.I. Act.

5. Learned A.G.A. on the other hand submits that once the cheque stood drawn and it has been dishonoured, the presumption under Section 139 of the N.I. Act would be there

6. I have heard the submissions so made across the Bar and perused the record carefully.

7. Apparently, post-dishonour of the cheque on two occasions and lastly on 23.2.2024 a statutory demand notice came to be issued on 12.3.2024. The question whether the said demand notice came to be served or not, is a subject matter of trial, and what would suffice would be clear recital in the complaint that the statutory demand notice has been issued.

8. 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."

9. Accordingly, the interference is declined, the application stands disposed of.

10. Leaving it open to the applicant to raise legal and factual grounds while contesting the trial. Order Date :- 22.8.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad

1. Heard Sri Narendra Kumar, learned counsel for the applicant and Sri J.P. Gupta, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 09.07.2024 passed by Civil Judge (Junior Division)/Judicial Magistrate, Mau Ranipur, Jhansi in Complaint Case no. 2561 of 2024 (Hardayal Vs. Jitendra Singh), under section 138, of Negotiable Instruments Act, Police Sation Uldan District 100 Jhansi, as well as impugned order dated 15.3.2024 passed by Special Judge (द०प०कक०), Jhansi in Complaint Case (Hardayal Vs. Jitendra Singh), under section 138, of Negotiable Instruments Act, Police Station Uldan District Jhansi alongwith the further proceeding of Complaint Case no. 2561 of 2024 (Hardayal Vs. Jitendra Singh), under section 138, of Negotiable Instruments Act, Police Sation Uldan District Jhansi, as well as N.B.W. Order dated 28.4.2025.

3. The case of the applicant is that a complaint stood lodged by O.P. No.2 on 15.4.2024 against the applicant under Section 138 of N.I. Act, wherein allegation is that with respect to discharge of a liability to the applicant herein had drawn a cheque bearing number "462016" of an amount of Rs.7,00,000/- which on presentation in the bank came to be dishonoured on 8.12.2023 followed by a statutory demand notice on 6.01.2024 and on the assurance of the applicant he again presented the cheque in the bank a complaint under Section 138 of the N.I. Act on 23.2.2024 which came to be dishonoured followed by a statutory demand notice dated 12.3.2024 and the complaint on 15.4.2024 and the applicant came to be summoned on 9.7.2024 under Section 138 of N.I. Act.

4. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason that though there is a recital in the complaint that the statutory demand notice came to be issued but there is no date of service of the statutory demand notice and actually the statutory demand notice was not served upon the applicant. He has thus submitted that there has been a clear infraction of provisions of Section 138 read with Section 142 of the N.I. Act.

5. Learned A.G.A. on the other hand submits that once the cheque stood drawn and it has been dishonoured, the presumption under Section 139 of the N.I. Act would be there

6. I have heard the submissions so made across the Bar and perused the record carefully.

7. Apparently, post-dishonour of the cheque on two occasions and lastly on 23.2.2024 a statutory demand notice came to be issued on 12.3.2024. The question whether the said demand notice came to be served or not, is a subject matter of trial, and what would suffice would be clear recital in the complaint that the statutory demand notice has been issued.

8. 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."

9. Accordingly, the interference is declined, the application stands disposed of.

10. Leaving it open to the applicant to raise legal and factual grounds while contesting the trial. Order Date :- 22.8.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad