Dhirender Gaba vs State Of U.P. And Another
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Allahabad High Court

Dhirender Gaba vs State Of U.P. And Another on 2 July, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:101849
 
Court No. - 75
 

 
Case :- APPLICATION U/S 528 BNSS No. - 20306 of 2025
 

 
Applicant :- Dhirender Gaba
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Shivam Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.
 

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

2. This application under Section 528 BNSS has been filed by the applicant to quash the entire proceeding of Complaint Case No. 138 of 2024 (Old Case No. 537 of 2020) Ravinder Kumar Vs Dhirender Gaba, under section 138 Negotiable Instrument Act, Police Station-Beta 2, District- Gautam Budh Nagar as well as Impugned Summoning Order Dated 08.09.2021 passed by the Additional Chief Judicial Magistrate - 2, Gautam Budh Nagar(Now presently pending before Special Judge 138 Negotiable Instrument Act, Gautam Budh Nagar).

3. Learned counsel for the applicant has submitted that on 9.9.2020, a complaint was lodged by the opposite party no. 2 against the applicant with an allegation that with respect to purchase of a flat 3 cheques bearing no. 000219 dated 10.5.2020, Rs.10 lakhs, 000220 dated 10. 6.2020, Rs.10 lakhs, 000221 dated 10.7.2020, Rs.10 lakhs came to be drawn by the applicant which on presentation in the bank came to be dishonoured, a statutory demand notice also came to be issued on 7.8.2020, followed by the complaint under Section 138 N.I. Act on 9.9.2020 and on 8.9.2021, the applicant was summoned under Section 138 of the N.I. Act. Learned counsel for the applicant has further submitted that the summoning order cannot be sustained for more than one reason. Firstly, the said cheques were with the opposite party no. 2 as security and thus it does not answer the description of debt and liability so as to invoke the provisions of Section 138 of the N.I. Act. Secondly, in paragraph no. 13 of the complaint, only this much has been asserted that on 7.8. 2020, a statutory demand notice came to be issued and the applicant did not receive the same but there is no date as to when the said notice came to be served and refused to be accepted, he also seeks to rely upon the coordinate Bench judgment in Application U/S 482 no. 29862 of 2019, Mohd. Mohsin v. State of U.P. and another, Application U/S 482 No. 98 of 2020 Ali Jaan Vs. State of U.P. and another and Application U/S 482 No.3431 of 2020 Udain Sengar Vs. State of U.P. and another.

4. Learned State Officer on the other hand, submits that what would be relevant in the present proceedings would be the stage of trial. According to him, the summing order is dated 8.9.2021 and the present application has been presented before this court on 27. 5.2025.

5. Apart from him, the same, according to him, the proceedings under Section 254 of the Cr.P.C. are going on thus it would be too late of the day to invoke the jurisdiction.

6. Having heard the submissions so made across the bar and after perusing the record, the sole question which arises for determination is the extent of judicial intervention at this stage. Apparently, the summing order is dated 8.9.2021 and the present application has been preferred in the year 2025 and the proceedings under Section 254 Cr.P.C. is underway. Thus, it would not be appropriate for the Court to interfere at this stage. Moreover, so far as the issue relatable to the fact that there is no date mentioned, when the applicant refused to refuse the statutory demand notice is concerned, what would be relevant would be the recital in the complaint at the end of the complainant about the issuance of the statutory demand notice The question as to whether the same was served or not or was actually refused is a matter of trial.

7. Hon'ble Apex Court in the case of Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685 wherein in paragraph nos.10 and 11 which have 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 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. Moreover, so far as aspect of the allegation that cheque was by way of security is concerned the same is a matter of fact a matter of trial as held by the Hon'ble Apex Court in the case of M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another (2022) 18 SCC 631 has observed as under:-

"In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques."

9. In Sunil Todi and others Vs. State of Gujarat, (2022) 16 SCC 762 the Hon'ble Apex Court has reiterated the aforesaid law.

10. Moreover, in the absence of tendering plausible explanation for delay in filing the present proceedings and once the applicant himself has participated in the proceedings, then it would not be appropriate for this court to interfere at this stage.

11. Apart from the same, at the stage of summoning, what would be relevant would be the presumption under Section 139 of the N.I. Act which would always be in favour of the holder.

12. Accordingly, interference is declined. However, the application stands disposed of granting liberty to the applicant to take all legal and factual grounds before the court below while contesting the matter and this court has no reasons to disbelieve that in case legal and factual grounds are taken, then the same shall be dealt with in accordance with law.

Order Date :- 2.7.2025

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