Allahabad High Court
Quamar Khan vs State Of U.P. And Another on 7 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:73102
Court No. - 73
Case :- APPLICATION U/S 482 No. - 44218 of 2024
Applicant :- Quamar Khan
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Dhirendra Kumar Srivastava,Firoz Ahmad Khan
Counsel for Opposite Party :- G.A.
Hon'ble Vikas Budhwar,J.
1. Heard Sri Dhirendra Kumar Srivastava, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State.
2. This is an application under Section 528 BNSS preferred by the applicant for quashing the impugned summoning order dated 22.06.2022 passed by the learned Presiding Officer, Additional Court, Aligarh and entire proceedings of Complaint Case No.10639 of 2022, under Section-138 of Negotiable Instruments Act, Police Station- Kwarsi, District- Aligarh, pending before the Court of learned Presiding Officer, Additional Court, Aligarh.
3. Learned counsel for the applicant has submitted that a complaint was lodged by O.P. No.2 on 11.04.2022 against M/s Quality Developers through its authorized signatory Quamar Khan (applicant) with an allegation that on 11.12.2021, a cheque bearing number "029125" of an amount of Rs.35,00,000/- was drawn by the applicant, which on presentation in the bank on 04.03.2022 was dishonoured on 08.03.2022, a statutory demand notice was issued on 10.03.2022 and 23.03.2022. Since the payments were not made, so on 11.04.2022, the complaint under Section 138 of N.I. Act was preferred. Post lodging of the complaint, on 22.06.2022, the applicant has been summoned under Section 138 of N.I. Act.
4. Questioning the summoning order, the applicant has filed the present application.
5. Learned counsel for the applicant has submitted that the orders dated 22.06.2022 summoning the applicant under Section 138 of N.I. Act cannot be sustained for more than one reason. Submission is that in the complaint, the accused had been made M/s Quality Developers through its authorized signatory Quamar Khan (applicant herein), but the applicant in the individual capacity as Quamar Khan has been summoned without even summoning the actual accused being M/s Quality Developers. He submits that this is a glaring infirmity and illegality as the cheque was drawn for Quality Developers and the same stood dishonoured, thus the main accused has not been summoned. Secondly, he submits that a further perusal of the complaint would reveal that in para-15, it has been alleged that a statutory demand notice was issued on 10.03.2022 followed by 23.03.2022, but there is no date mentioned regarding the service upon the applicant, thus the bare minimum requirement is lacking, which even makes the complaint not maintainable. Thus it is prayed that the summoning order be set aside.
6. Learned A.G.A. on the other hand submits that first of all the provisions of Section 141 of the N.I. Act would not apply and further presumption under Section 139 of N.I. Act would be there and this much is only relevant that it would suffice the purpose that a statutory demand notice has been sent on a correct address. Merely because, the date of service has not been mentioned would not defeat the proceedings.
7. I have heard the submissions so made across the Bar and perused the record carefully.
8. Apparently, a cheque for an amount of Rs.35,00,000/- was drawn by the authorized signatory of the M/s Quality Developers in favour of the O.P. No.2 for Rs.35,00,000/-. The same on presentation to the Bank stood dishonoured on 08.03.2022. Though the learned counsel for the applicant has submitted that M/s Quality Developers was made an accused in the complaint through authorized signatory, applicant- Quamar Khan, but on 22.06.2022, only the applicant has been summoned in individual capacity and not Ms/ Quality Developers and thus, the complaint would fail is not convincible at all for the reason that a specific query was raised to the learned counsel for the applicant about the status of M/s Quality Developers, to which learned counsel for the applicant has made a statement that it is a sole proprietorship Firm.
9. Section 141 of the N.I. Act deals with the offences of the Companies and explanation (a) defines company, a body corporate when includes a Firm and other association of individuals and explanation (b) Director in relation to the Firm means a partner in the Firm. In Abhishek Jain vs. State of U.P., in Application u/s 482 No. - 27006 of 2015, a coordinate Bench of this Court had the occasion to consider the difference between the sole proprietorship Firm and partnership Firm, wherein in para-16, the following was held:-
"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."
10. Since the firm in question is a sole proprietor Firm, thus there is no difference between the sole proprietorship Firm and the sole proprietor and they are one and the same. As regards the submission of the learned counsel for the applicant, that there is no date of service of the statutory demand notice mentioned in the complaint, thus the complaint would not be maintainable is also out of context particularly when what is required is the date on which the statutory demand notice was sent and further the issue as to whether the same was served or not is a matter of trial. 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. Even otherwise, the issue as to whether the notice has been served or not is a matter of trial and it would not be appropriate for the Court to scuttle the proceedings at this stage. Accordingly, no case for interference is made out.
12. Learned counsel for the applicant at this stage submits that a direction be given for compounding.
13. The application is disposed of while observing that in case appropriate proceeding under Section 147 N.I. Act for compounding of the offence is preferred before the court concerned, then this Court has no reason to disbelieve that the same shall be decided with most expedition strictly in accordance with the law of the land.
Order Date :- 7.5.2025
N.S.Rathour
(Vikas Budhwar, J)
