Satish Chandra Srivastava v. Arvind Srivastava) as well as summoning order dated
Case Details
Neutral Citation No. - 2025:AHC:142285 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 43891 of 2024
Legal Reasoning
Applicant :- Arvind Srivastava Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashish Srivastava,Devendra Kumar Singh,Mishra Vikas Kumar Prabhunath Counsel for Opposite Party :- Ashish Kumar Ojha,G.A.,Pawan Kumar Hon'ble Vikas Budhwar,J. 1. Heard Sri Devendra Kumar Singh, learned counsel for applicant and Sri Vikas Sharma, learned State Law Officer for the State. 2. No one appeared on behalf of opposite party No.2 though the name of Sri Pawan Kumar and Ashish Kumar Ojha printed in the cause list as counsel for opposite party no.2 but they are not present. 3. This application under Section 528 B.N.S.S. has been filed by the applicant to quash the entire proceeding of Complaint Case no.2620 of 2024 (Satish Chandra Srivastava Vs. Arvind Srivastava) as well as summoning order dated 23.10.2024 passed by Additional Chief Judicial Magistrate/Civil Judge (Senior Division) Maharajganj, under Section 138 of N.I. Act, P.S. Ghughali, District Maharajganj. 4. Learned counsel for applicant has submitted that a complaint stood lodged by the opposite party no.2 on 22.2.2024 against the applicant under Section 138 of N.I. Act with an allegation that the applicant with respect to discharge his liability had drawn the cheque bearing No.584718 dated 26.12.2023 for an amount of rupees four lakhs which on presentation in the bank on 12.1.2024 came to be dishonoured on 30.1.2024 followed by statutory demand notice dated 1.2.2024 and the complaint under Section 138 of N.I. Act on 22.2.2024. Thereafter the applicant came to be summoned on 23.10.2024. Learned counsel for applicant has submitted that the summoning order cannot be sustained for the simple reason that statutory demand notice is stated to have been issued on 01.02.2024 but the same has not bee served upon the applicant and there is no recital in the complaint itself regarding date of service. Thus, there is clear infraction of the provisions contained under Section 138 read with Section 142 of N.I. Act. 5. Learned State Law Officer on the other hand submits that once the cheque drawn and it has been dishonoured then the presumption under Section 139 of the Act would be there. 6. I have heard the submissions so made across the bar and perused the record. 7. Apparently, as per the complaint case the cheque for an amount of rupees 4 lakhs came to be drawn which on presentation in the bank stood dishonoured on 30.1.2024 followed by statutory demand notice dated 1.1.2024. The Hon'ble Apex Court in Ajeet Seeds Vs. Vs. K. Gopala Krishnaiah, (2014) 12 SCC 685 had occasion to consider a contingency wherein there is no recital in the complaint regarding service of statutory demand notice and the following was observed 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." 8. Since in the present case there is clear recital of the issuance of statutory demand notice the same would suffice that the question regarding service or non service is subject matter of trial which has got nothing to do at the stage of summoning. Moreover, presumption under Section 138 of N.I. Act is there accordingly, interference is declined.
Decision
9. The application stands disposed of. 10. Leaving it open for the applicant to take all legal and factual grounds while contesting trial. 11. Learned counsel for applicant submits that N.B.W. has been issued. He seeks a direction for consideration of bail in the light of judgment of the Hon'ble Apex Court in Satender Kumar Antil Vs. Central Bureau of Investigation and another reported in (2021) 10 SCC 773. 12. In the opinion of the Court, once said application is preferred the court below has no reason to disbelieve and the same shall be considered in accordance with law. Order Date :- 19.8.2025 Md Faisal Digitally signed by :- Digitally signed by :- MOHD FAISAL MOHD FAISAL High Court of Judicature at Allahabad High Court of Judicature at Allahabad