State of U.P. and Another vs Party(s)
Case Details
Acts & Sections
Cited in this judgment
Smt. Babita State of U.P. and Another Versus .....Applicant(s) .....Opposite Party(s) Counsel for Applicant(s) Counsel for Opposite Party(s) Chandra Bhan Dubey : : G.A. Court No. - 75 HON'BLE VIKAS BUDHWAR, J.
1. Heard Sri Chandra Bhan Dubey, learned counsel for the applicant as well as Sri J.P. Gupta, learned AGA for the State.
2. This application u/s 528 of BNSS has been preferred to quash the impugned summoning order dated 30.10.2019 passed by the learned A.C.J.M. 3rd Meerut in Complaint Case No.7776 of 2020, (Ajit Versus Babita), under Sections 138 Ν.Ι. Act, Police Station Pallavpuram District Meerut through which the learned Magistrate concerned has summoned the applicant under section 138 Ν.Ι. Act. 30.10.2019 passed by the learned A.C.J.M. 3rd Meerut in Complaint Case No.7776 of 2020, Ajit Versus Babita, under Sections 138 N.I. Act, Police Station Pallavpuram, District Meerut through which the learned Magistrate concerned summoned the applicant under section 138 has N.I. Act.
3. The case of the applicant is that a complaint stood preferred on 20.12.2018 by the opposite party no. 2 against the applicant under Section 138 of the NI Act with an allegation that with respect to discharge of a liability, the applicant herein had drawn a cheque bearing no. 852317 dated 22.11.2018 of an amount of Rs. 1,70,000/- which on presentation in the bank came to be dishonored on 28.11.2018 information whereof was received by the opposite party no. 2 on 01.12.2018 and a statutory demand notice came to be issued on 07.12.2018 followed by a complaint on 20.12.2018 and the applicant came to be summoned on 30.10.2019 under Section 138 of the NI Act. Learned counsel for the applicant has submitted that a marriage was fixed between the sister of the opposite party no. 2 and the devar of the applicant herein, however, the same could not materialize and the applicant had given a security cheque for returning the value of the gifts but the said cheque has been mis-utilized, it does not answer the description of debt and 2 NA528 No. 35148 of 2025 liability under Section 138 of the NI Act and further the statutory demand notice dated 07.12.2018 is not being served upon the applicant.
4. Learned AGA, on the other hand, submits that once the cheque stood drawn and it was dishonored then the presumption under Section 139 of the NI Act would be there.
5. I have heard the submission so made across the bar and perused the record carefully.
6. Apparently, the allegatation is with regard to drawing of a cheque and dishonoring followed by a statutory demand notice. The first contention of the learned counsel for the applicant that the statutory demand notice was not served upon the applicant is concerned, the same is not required to be gone into at the stage of summoning as it is the subject of trial. Further what would be relevant is recital about issuance of a demand notice and service or non-service is a subject matter of trial. In Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685 wherein it has 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. As regards the submission of the learned counsel for the applicant that the said cheque was a security cheque, then the liability under Section 138 NI Act is concerned, the same is also not convincible particularly when it is the subject matter of trial. In M/s Womb Laboratories Pvt. Ltd. vs Vijay 3 NA528 No. 35148 of 2025 Ahuja 2022 (18) SCC 631 and in Sunil Todi vs. the State of Gujarat 2022 (16) SCC 762.
8. Moreover, presumption under Section 139 of the NI Act would be there and further the present application has been preferred, presented before this Court on 17.08.2025 whereas the summoning order is dated 30.10.2019.
9. Accordingly, interference is declined, the application stands disposed of. September 15, 2025 Rajesh (Vikas Budhwar,J.) RAJESH KUMAR High Court of Judicature at Allahabad
Smt. Babita State of U.P. and Another Versus .....Applicant(s) .....Opposite Party(s) Counsel for Applicant(s) Counsel for Opposite Party(s) Chandra Bhan Dubey : : G.A. Court No. - 75 HON'BLE VIKAS BUDHWAR, J.
1. Heard Sri Chandra Bhan Dubey, learned counsel for the applicant as well as Sri J.P. Gupta, learned AGA for the State.
2. This application u/s 528 of BNSS has been preferred to quash the impugned summoning order dated 30.10.2019 passed by the learned A.C.J.M. 3rd Meerut in Complaint Case No.7776 of 2020, (Ajit Versus Babita), under Sections 138 Ν.Ι. Act, Police Station Pallavpuram District Meerut through which the learned Magistrate concerned has summoned the applicant under section 138 Ν.Ι. Act. 30.10.2019 passed by the learned A.C.J.M. 3rd Meerut in Complaint Case No.7776 of 2020, Ajit Versus Babita, under Sections 138 N.I. Act, Police Station Pallavpuram, District Meerut through which the learned Magistrate concerned summoned the applicant under section 138 has N.I. Act.
3. The case of the applicant is that a complaint stood preferred on 20.12.2018 by the opposite party no. 2 against the applicant under Section 138 of the NI Act with an allegation that with respect to discharge of a liability, the applicant herein had drawn a cheque bearing no. 852317 dated 22.11.2018 of an amount of Rs. 1,70,000/- which on presentation in the bank came to be dishonored on 28.11.2018 information whereof was received by the opposite party no. 2 on 01.12.2018 and a statutory demand notice came to be issued on 07.12.2018 followed by a complaint on 20.12.2018 and the applicant came to be summoned on 30.10.2019 under Section 138 of the NI Act. Learned counsel for the applicant has submitted that a marriage was fixed between the sister of the opposite party no. 2 and the devar of the applicant herein, however, the same could not materialize and the applicant had given a security cheque for returning the value of the gifts but the said cheque has been mis-utilized, it does not answer the description of debt and 2 NA528 No. 35148 of 2025 liability under Section 138 of the NI Act and further the statutory demand notice dated 07.12.2018 is not being served upon the applicant.
4. Learned AGA, on the other hand, submits that once the cheque stood drawn and it was dishonored then the presumption under Section 139 of the NI Act would be there.
5. I have heard the submission so made across the bar and perused the record carefully.
6. Apparently, the allegatation is with regard to drawing of a cheque and dishonoring followed by a statutory demand notice. The first contention of the learned counsel for the applicant that the statutory demand notice was not served upon the applicant is concerned, the same is not required to be gone into at the stage of summoning as it is the subject of trial. Further what would be relevant is recital about issuance of a demand notice and service or non-service is a subject matter of trial. In Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685 wherein it has 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. As regards the submission of the learned counsel for the applicant that the said cheque was a security cheque, then the liability under Section 138 NI Act is concerned, the same is also not convincible particularly when it is the subject matter of trial. In M/s Womb Laboratories Pvt. Ltd. vs Vijay 3 NA528 No. 35148 of 2025 Ahuja 2022 (18) SCC 631 and in Sunil Todi vs. the State of Gujarat 2022 (16) SCC 762.
8. Moreover, presumption under Section 139 of the NI Act would be there and further the present application has been preferred, presented before this Court on 17.08.2025 whereas the summoning order is dated 30.10.2019.
9. Accordingly, interference is declined, the application stands disposed of. September 15, 2025 Rajesh (Vikas Budhwar,J.) RAJESH KUMAR High Court of Judicature at Allahabad