Allahabad High Court
Abhidev Kumar vs State Of U.P. And Another on 20 August, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:142301
Court No. - 75
Case :- APPLICATION U/S 528 BNSS No. - 14119 of 2025 (Leading Application)
Applicant :- Abhidev Kumar
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Amit Kumar,Neetu Singh
Counsel for Opposite Party :- G.A.
with
Case :- APPLICATION U/S 528 BNSS No. - 14120 of 2025 (Connected Application)
Applicant :- Abhidev Kumar
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Amit Kumar,Neetu Singh
Counsel for Opposite Party :- G.A.
Hon'ble Vikas Budhwar,J.
1. Heard Shri Amit Kumar, learned counsel for the applicant in leading and connected applications and Sri Vikash Sharma, learned State Law Officer for the State.
2. The counsel for the rival parties have made a joint statement that they do not propose to file any further affidavits, thus, with the consent of the parties, the application is being decided at the fresh stage.
3. The facts of the leading application are that a complaint was lodged by the opposite party no. 2 against the applicant under Section 138 of the N.I. Act with respect to discharge of a liability, the applicant had drawn two cheques bearing No. 015516 of Rs. 5 lakhs dated 11.10.2021 and the second cheque bearing no. 015517 of Rs. 4 lakhs dated 11.10.2021 which on presentation in the bank stood dishonoured on 22.10.2021 followed by a statutory demand notice came to be issued on 22.10.2021 thereafter the applicant came to be summoned on 12.04.2022 under Section 138 of the N.I. Act.
4. Insofar as connected application is concerned, the complaint was lodged by the opposite party no. 2 against the applicant on 10.11.2021 with an allegation that with respect to discharge of a liability, the applicant had drawn two cheques, bearing No. 015513 of Rs. 5 lakhs on 06.08.2021 and another cheque No. 015512 of Rs. 5 lakhs dated 10.07.2021 which on presentation in the bank stood dishonoured on 11.10.2021 followed by a statutory demand notice came to be issued on 16.01.2021 thereafter the applicant came to be summoned on 12.04.2022.
5. Questioning the summoning orders, the applicant has been filed the present applications.
6. Learned counsel for the applicant submits that the summoning order cannot be sustained for the simple reason that so far as the leading application is concerned, the cheques in question stood dishonoured on 22.10.2021 and a statutory demand notice came to be issued, however, while inviting attention of the Court towards page 24 of the paper book, it is contended that the statutory demand notice came to be sent by a registered post on 30.10.2021. Likewise, in the connected application also in the complaint, reference has been made to the fact that a statutory demand notice came to be issued on 16.10.2021 but while inviting attention of the Court towards page 22, it is contended that the statutory demand notice came to be sent by registered post on 21.10.2021, thus, the complaint itself was not maintainable and the court below had committed manifest error of law in summoning of the applicant as there has been clear infraction under Section 138 read with Section 142 of the N.I. Act, since the applicant has not received the statutory demand notice. He submits that had the applicant received the statutory demand notice, he could have replied putting forward his stand that the entire basis of the complaint has no legs to stand.
7. Learned State Law Officer has opposed the application while contending that once the cheque had been drawn then there happens to be a statutory presumption under Section 139 of the Act would be there and the question with regard to the service of statutory demand notice is a subject matter of trial.
8. I have heard learned counsel for the parties and gone through the records carefully.
9. The sole question which arises for determination in the present proceedings is to the extent of judicial intervention. Apparently, post dishonour of the cheque, the statutory demand notice came to be issued as recited in the complaint in the leading application on 22.10.2021 and in the connected application on 16.10.2021. This Court at this juncture is not required to delve into the fact whether the statutory demand notice was actually issued on 22.10.2021, 16.10.2021 and on 31.10.2021 and 21.10.2021 as per the stand of the applicant is concerned, the same is a subject matter of trial. Moreover suffice would be the fact that there is a clear recital about issuance of statutory demand notice. The question as to whether is served or not is a subject matter of trial.
10. 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."
11. Accordingly, the interference is declined, the application stands disposed of.
11. Leaving it open to the applicant to raise legal and factual grounds while contesting the trial.
Order Date :- 20.8.2025
A. Prajapati
