M/s. M.K. Traders Pro. Mukesh Khatri v. Sindh Mens Wear Pro. Vinay Shdeeja) under section

1. Heard Sri Manoj Mishra, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State.

2. This application u/s 482 of Cr.P.C. has been preferred for and quashing the further proceeding of complaint case no.29032 of 2021 (M/s. M.K. Traders Pro. Mukesh Khatri vs. Sindh Mens Wear Pro. Vinay Shdeeja) under section 138 N.I. Act, Police station-Chauk, District-Varanasi pending before Special Chief Judicial Magistrate Varanasi and order dated 23.04.2022 passed by Special Chief Judicial Magistrate, Varanasi and also quash the order dated 20.04.2022 passed by Special Chief Judicial Magistrate, Varanasi.

3. Learned counsel for the applicant has submitted that a complaint stood lodged by the opposite party no. 2 on 18.10.2021 relatable to dishonoring of a cheque of an amount of Rs. 4,92,414/- bearing no. 005172 dated 31.08.2021. Learned counsel for the applicant submits that first of all the statutory legal notice was issued on 10.09.2021, however, the complaint had been filed on 18.10.2021 and without there being any date of service the presumption under Section 27 of the General Clauses Act will apply and the total time computing for lodging of the complaint would be 45 days, 30 days' time for deemed service and 15 days for making payment. He further submits that as per the invoice i.e. of the year 2018 and, thus, the debt is not a recoverable debt being barred by limitation. He additionally submits that even the tracking report does not show that the service has been made upon the applicant. Lastly, it has been submitted that though the firm is Sindh Mens Wear which had draw a cheque which was dishonored but it has not been impleaded as the accused.

4. Learned AGA submits that all the contentions so sought to be raised that no legs to stand, he submits that these are the matters of trial.

5. I have heard the submissions so made across the bar, and perused the record carefully.

6. Apparently a cheque stood stood drawn by a firm by the name of M/s Sindh Mens Wear. On a pointed query being raised to the learned counsel for the applicant as to whether the firm in question is a partnership firm or a sole proprietorship firm. Learned counsel for the applicant submits that the same is a sole proprietorship firm. A Coordinate Bench of this Court in the Case of Abhishek Jain Vs. State of U.P. 2023 (0) Supreme (All) (1581), para 16 has observed as under.- “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.”

7. Thus, there is no requirement to make the sole proprietor as a accused once the sole proprietor has been made a arrayed as accused. So far as the other contentions sought to be raised with regard to the fact that since the statutory demand notice was issued on 10.09.2021 and the complaint was preferred on 18.10.2021 before lapsing of 30 days as required under Section 27 of the General Clauses Act for deemed sufficiency and 15 days further period for making the payment is concerned, the same is a matter of trial which cannot be gone into, the Hon'ble Apex Court had the occasion to consider the said aspect of the matter in the case of M/s Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685, wherein the Hon'ble Apex Court in para 10 and 11 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 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. Apart from the same, the notice has been served upon the applicant or not is a matter of trial and only this much that the notice was issued and served. As regards, the contention raised by the learned counsel for the applicant that the debts and the other liabilities are time barred is concerned, the same is a matter of trial as there is nothing on record as this Court is not required to go into the said issues particularly when the issuance of a cheque has not been disputed and the presumption of Section 139 of the NI Act would be against the applicant.

9. In view of the same, no case is made out for interference, the application is consigned to record. Order Date :- 25.4.2025 Rajesh RAJESH KUMAR High Court of Judicature at Allahabad

1. Heard Sri Manoj Mishra, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State.

2. This application u/s 482 of Cr.P.C. has been preferred for and quashing the further proceeding of complaint case no.29032 of 2021 (M/s. M.K. Traders Pro. Mukesh Khatri vs. Sindh Mens Wear Pro. Vinay Shdeeja) under section 138 N.I. Act, Police station-Chauk, District-Varanasi pending before Special Chief Judicial Magistrate Varanasi and order dated 23.04.2022 passed by Special Chief Judicial Magistrate, Varanasi and also quash the order dated 20.04.2022 passed by Special Chief Judicial Magistrate, Varanasi.

3. Learned counsel for the applicant has submitted that a complaint stood lodged by the opposite party no. 2 on 18.10.2021 relatable to dishonoring of a cheque of an amount of Rs. 4,92,414/- bearing no. 005172 dated 31.08.2021. Learned counsel for the applicant submits that first of all the statutory legal notice was issued on 10.09.2021, however, the complaint had been filed on 18.10.2021 and without there being any date of service the presumption under Section 27 of the General Clauses Act will apply and the total time computing for lodging of the complaint would be 45 days, 30 days' time for deemed service and 15 days for making payment. He further submits that as per the invoice i.e. of the year 2018 and, thus, the debt is not a recoverable debt being barred by limitation. He additionally submits that even the tracking report does not show that the service has been made upon the applicant. Lastly, it has been submitted that though the firm is Sindh Mens Wear which had draw a cheque which was dishonored but it has not been impleaded as the accused.

4. Learned AGA submits that all the contentions so sought to be raised that no legs to stand, he submits that these are the matters of trial.

5. I have heard the submissions so made across the bar, and perused the record carefully.

6. Apparently a cheque stood stood drawn by a firm by the name of M/s Sindh Mens Wear. On a pointed query being raised to the learned counsel for the applicant as to whether the firm in question is a partnership firm or a sole proprietorship firm. Learned counsel for the applicant submits that the same is a sole proprietorship firm. A Coordinate Bench of this Court in the Case of Abhishek Jain Vs. State of U.P. 2023 (0) Supreme (All) (1581), para 16 has observed as under.- “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.”

7. Thus, there is no requirement to make the sole proprietor as a accused once the sole proprietor has been made a arrayed as accused. So far as the other contentions sought to be raised with regard to the fact that since the statutory demand notice was issued on 10.09.2021 and the complaint was preferred on 18.10.2021 before lapsing of 30 days as required under Section 27 of the General Clauses Act for deemed sufficiency and 15 days further period for making the payment is concerned, the same is a matter of trial which cannot be gone into, the Hon'ble Apex Court had the occasion to consider the said aspect of the matter in the case of M/s Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685, wherein the Hon'ble Apex Court in para 10 and 11 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 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. Apart from the same, the notice has been served upon the applicant or not is a matter of trial and only this much that the notice was issued and served. As regards, the contention raised by the learned counsel for the applicant that the debts and the other liabilities are time barred is concerned, the same is a matter of trial as there is nothing on record as this Court is not required to go into the said issues particularly when the issuance of a cheque has not been disputed and the presumption of Section 139 of the NI Act would be against the applicant.

9. In view of the same, no case is made out for interference, the application is consigned to record. Order Date :- 25.4.2025 Rajesh RAJESH KUMAR High Court of Judicature at Allahabad