Majboot Singh vs State Of U.P. And Another
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Allahabad High Court

Majboot Singh vs State Of U.P. And Another on 1 May, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:68347
 
Court No. - 73
 

 
Case :- APPLICATION U/S 482 No. - 3185 of 2025
 

 
Applicant :- Majboot Singh
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Satya Prakash Chaturvedi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.
 

1. Heard Sri Satya Prakash Chaturvedi, learned counsel for the applicant and Sri Moti Lal, learned A.G.A.

2. This is an application under Section 482 of CrPC preferred by the applicant for quashing the summoning order dated 02.07.2023 passed by the learned court of Civil Judge (J.D.)/Judicial Magistrate, Jalaun in Complaint Case no. 236 of 2021, under section 138 N.I. Act, related to Police Station Jalaun, District Jalaun.

3. Learned counsel for the applicants has submitted that on 07.04.2021, a complaint was lodged by O.P. No.2 against the applicant with an allegation that a cheque was drawn by the applicant on 10.12.2020 for an amount of Rs.1,00,000/- bearing number "016145", which on presentation in the Bank on 25.01.2021 was dishonoured. Thereafter on the assurance of the O.P. No.2, the cheque was again presented on 01.03.2021, but it was dishonoured on 04.03.2021. A statutory demand notice was issued on 17.03.2021 and thereafter, complaint was filed on 07.04.2021. Learned counsel for the applicant has submitted that the complaint itself is defective and the applicant could not have been summoned under Section 138 of the N.I. Act for the simple reason that in para-9 of the complaint, this much has only been alleged that the statutory demand notice was issued on 17.03.2021, however, there is no recital of the date, on which the said notice stood served upon the applicant. He further submits that even otherwise in a proforma so attached, there is nothing on record to suggest the date of service of the notice. The summoning order, thus is mechanical and it is liable to be set aside.

4. Sri Moti Lal, learned A.G.A. on the other hand submits that the issue as to whether the notice has been served or not, is a matter of trial, which cannot be gone into at this stage.

5. Having heard the submissions so made across the Bar and after perusing the record, it is apparent that the complaint was filed by the O.P. No.2 with an allegation that a cheque of an amount of Rs.1,00,000/- stood dishonoured, when it was presented before the Bank on 25.01.2021 and thereafter again it was presented on 01.03.2021 wherein it was dishonoured on 04.03.2021. So far as the argument so sought to be raised by the learned counsel for the applicant that there happens to be no recital of the service of the notice upon the applicant in the entire complaint and in the proforma so attached, thus, in the absence of a specific recital to the said extent, the complaint would not be maintainable and no summoning order could be passed is not convincible, as the law in this regard has already been considered in the case of Ajeet Seeds Ltd. Vs. K. Gopala Krishnaiah, (2014) 12 SCC 685, wherein in paragraph-10 and 11 the Hon'ble Apex Court 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.".

6. Since there happens to be recital of service of the notice, the same would be sufficient. As a matter of fact, the issue as to whether the service has been effected upon the applicant or not, is a matter of trial, which cannot be gone into at this stage in the present proceeding. Moreover, there happens to be a presumption under Section 139 of the N.I. Act in favour of the holder of the cheque.

7. Accordingly, no case is made out to interfere at this stage.

8. The application is rejected.

Order Date :- 1.5.2025

N.S.Rathour

(Vikas Budhwar, J)