Idrish vs State Of U.P. And Another
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Allahabad High Court

Idrish vs State Of U.P. And Another on 4 July, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:104471
 
Court No. - 75
 
Case :- APPLICATION U/S 528 BNSS No. - 21836 of 2025
 
Applicant :- Idrish
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Deepak Pandey,Tariq Naiyer
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.
 

1. Heard Sri Tariq Naiyer, learned counsel for the applicant and Sri Moti Lal, learned AGA for the State.

2. This application under Section 528 BNSS has been filed by the applicant to quash the summoning order dated 16.02.2015 passed by learned Judicial Magistrate, Fatehpur in complaint case No. 110 of 2015 which has been renumbered as Case No. 212 of 2015 (CNR No.- UPF ?? 40010422015); Sriram Transport Finance Company Ltd. Vs. Idrish under Section 138 of Negotiable Instrument Act, 1881 which is presently pending in the Ld. Court of Additional Civil Judge (Junior Division)/J.M, Court No.-07, Fatehpur (U.P.).

3. Learned counsel for the applicant has submitted that on 11.2.2013 a complaint was lodged by the opposite party no.2 against the applicant purported to be under Section 138 read with Section 142 of the N.I. Act before the Court of Metropolitan Magistrate-X, Kanpur Nagar with an allegation that with respect to purchase of a vehicle financial assistance was accorded by opposite party no.2 to the applicant and with regard to non adherence to the time line for repayment amount become due and a cheque bearing no.255677 dated 5.12.2012 for an amount of Rs.3,95,000/- was drawn by the applicant in favour of the opposite party no.2 which on presentation in the bank came to be dishonoured on 13.12.2012 on account of opening balance insufficient followed by a statutory demand notice dated 1.1.2013 and the complaint dated 11.2.2013. The court of Metropolitan Magistrate-X, Kanpur Nagar on 1.3.2013 summoned the applicant thereafter the matter stood transferred to the court at Fatehpur where again summoning order came to be passed on 16.2.2015. He has further submitted that the summoning order cannot be sustained for more than one reason. Firstly, though in the complaint it has been alleged that a statutory demand notice was issued on 1.1.2013 but the same was at no point of time served as there is no date of service mentioned in para-6 of the complaint though in the details being the appendix the service of the notice is shown to be on 4.1.2013. He has thus submitted that there has to be a positive assertion in a paragraph so as to give opportunity to the applicant accused to reply to the same. He has next submitted that one of the basic requirements being mandatory and a condition precedent is service of a statutory notice so as to enable the accused to make the payment within 15 days, however, in the present case the applicant has not been served with the notice thus there is no question of attracting the provisions of Section 138 of the N.I. Act. Secondly, the entire dispute is a civil dispute as though the applicant does not possess the copy of an agreement entered into between the opposite party no. 2 and the applicant in view of the fact that the applicant is a villager and a rustic but there happens to be an arbitration clause thus the recovery by mode of invocation of the proceedings under N.I. Act is not permissible as an award is to be passed in terms of Arbitration and Conciliation Act, 1996 followed by subsequent proceedings. Thirdly, the cheques by way of security thus they do not answer the description of debts and liabilities under Section 138 of the N.I. Act

4. Learned AGA on the other hand, submits that whatever might be once a cheque stood drawn and the same came to be dishonoured then the presumption under Section 139 of the N.I. Act would always be in favour of the holder and it is for the opposite party no.2 complainant to elect any of the remedies either to invoke provisions for arbitration ought to avail the remedy under N.I. Act. He further submits that there happens to be the date of service of notice given as noticed above, thus, no fault whatsoever can be attributed in this regard.

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

6. The sole question which arises for determination is the extent of judicial intervention at this stage. Apparently, the cheque was drawn bearing no.255677 dated 5.12.2012 for an amount of Rs.3,95,000/- which came to be dishonoured on 13.12.2012, a statutory demand notice is stated to have been issued on 1.1.2013. The question as to whether the notice was actually served or not is a subject 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. Apart from the same the Court does not find any merit in the submission so raised by the learned counsel for the applicant that the remedy was only limited to arbitration at the end of the opposite party no.2 for the simple reason that law does not prohibit or bar invocation of the proceedings under N.I. Act. Even otherwise once the cheque stood drawn then presumption would be in favour of the cheque. This Court further finds that the summoning order came to be issued on 13.1.2013 by the Fatehpur court at Kanpur and 16.2.2015 by the court in Kanpur.

11. There is enormous delay in approaching this Court. The Court at this juncture is not addressing upon the aspect as to whether the delay was genuine or not in the light of the submission made by the learned counsel for the applicant that the non bailable and non bailable warrant were not served.

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 :- 4.7.2025/piyush