Allahabad High Court
Imran Khan vs State Of U.P. And Another on 22 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:86368
Court No. - 73
Case :- APPLICATION U/S 528 BNSS No. - 16268 of 2025
Applicant :- Imran Khan
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Ayan Ahmed,Jayant Rai
Counsel for Opposite Party :- G.A.
Hon'ble Vikas Budhwar,J.
1. Heard Sri Jayant Rai, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State.
2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 07.09.2024 passed by learned Court of Chief Judicial Magistrate, Court No. 05, District Varanasi as well as the entire proceedings of Complaint Case (Haji Mohd. Aslam Vs. Imran Khan) U/S 138 of N.I. Act, Police Station Chetganj, District Varanasi, pending in the court of learned Chief Judicial Magistrate, Court No. 05, District Varanasi.
3. The case of the applicant is that a complaint was lodged by O.P. No.2 against the applicant on 15.05.2024 under Section 138 of the N.I. Act with an allegation that the complainant/ O.P. No.2 is a businessman, who deals in cloths (saree). According to the complaint, an amount of Rs.4,10,00,000/- was granted by O.P. No.2 to the applicant for financial assistance and the applicant herein is a property dealer, for the discharge of liability, a cheque bearing number "050510" dated 01.02.2024 of Rs.50,00,000/- was drawn by the applicant in favour of the O.P. No.2, which on presentation in the Bank on 01.02.2024 was dishonoured for the reason that payment was stopped by the drawer on 02.02.2024, again the same was presented on 15.02.2024, dishonoured on 16.02.2024, payment stopped by the drawer and lastly on 15.04.2024 when it was dishonoured on 16.04.2024 for the reason, payment stopped by the drawer followed by a statutory demand notice dated 22.04.2024 and then the complaint. Thereafter the Court of Addl. Chief Judicial Magistrate, Court No.5, Varanasi on 07.09.2024 proceeded to summon the applicant on 07.09.2024 under Section 138 of the N.I. Act.
4. Questioning the summoning order, the present application has been preferred.
5. Learned counsel for the applicant has submitted that a complaint as well as the summoning order cannot be sustained for a single moment for more than one reason. Firstly, there is no mode or mannner depicted in the complaint with regard to the payment of Rs.4,10,00,000/-, thus in order to show and demonstrate, the said amount was paid, at least the date and the mode of payment ought to have been recited. Secondly, in the complaint, in para-9, only this much has been asserted that on 22.04.2014 a statutory demand notice was issued, but there is no date of service of the same upon the applicant, thus on this count alone, the complaint is bound to fall. Thirdly, the applicant has not received statutory demand notice. Fourthly the applicant who is dealing in property. The O.P. No.2 had invested the said amount of Rs.50 lakhs and for earning profit and on 23.06.2023 the payments were made to the tune of Rs.10,00,000/-, on 08.07.2023 Rs.3,00,000/-, 01.09.2023 Rs.1,00,000/-, 22.09.2023, Rs.45,00,000/- and 29.09.2023 Rs.30,000/-. Thus total amount of Rs.59,30,000/- had already been paid and there remained nothing to be further paid and in view of the Section 56 of the N.I. Act, the amount so reflected in the cheque, which was dishonoured would not be the amount due and payable and there is no enforcement debt would be there particularly when the entire payment more than the same had already been paid. Fifthly, the said cheque was a security cheque, thus it does not qualify the definition and would come within the parameters to invoke Section 138 of the N.I. Act.
6. Learned State Law Officer on the other hand submits that once a cheque stood drawn, then the presumption of Section 139 of N.I. Act would be in favour of the holder and further this Court at this juncture, the may not delve into the question regarding the payment made to the tune of Rs.59,30,000/- as the same may be on account of some other transaction.
7. I have heard the submissions so made across the bar and perused the record.
8. Apparently, the complaint alleges dishonouring of a cheque of Rs.50,00,000/- which was presented on three occasions and the same was dishonoured for the reason 'payment stopped by the drawer' followed by statutory demand notice dated 22.04.2024. As regards the submission of the learned counsel for the applicant that there is no recital of the date on which the said notice has been served cannot be gone into particularly when only this much is required at the stage of summoning that a legal notice has been issued. The question as to whether the same was served or not is a question 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."
9. With respect to the argument of the learned counsel for the applicant that the said cheque was with the O.P. No.2 as a security cheque with respect to return of the money, which was invested by O.P. No.2 is concerned, the same is also a matter of trial, as in umpteen number of decisions, it has been propounded by the Hon'ble Apex Court that the issue as to whether the cheque was as a security or not is a matter of trial. In M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another, (2022) 18 SCC 631, the Hon'ble Apex Court had the occasion to consider the issue as to whether the determination can be done at the stage of summoning when the allegation that the cheque was a security cheque is concerned. The Hon'ble Apex Court 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."
10. The aforesaid law has been followed subsequently in Sunil Todi and others vs. State of Gujarat, (2022) 16 SCC 762.
11. In so far as, the submissions so made by learned counsel for the applicant that the entire payment has been made to the tune of Rs.59,30,000/-, thus the applicant is entitled to the benefits under Section 56 is concerned, same may not be a ground to throttle the proceedings at the summoning stage, particularly when it cannot be gathered on the basis of the document available on record that the said payment was made with regard to the transaction relatable to the dishonouring of a cheque of Rs.50,00,000/-.
12. Lastly, the question with respect to the manner and the mode according to which the payment of Rs.50,00,000/- was made is a matter which can be at best a defence and the same would require consideration only at a stage when the trial commences, where decision is to be taken, whether it is a case of acquittal or conviction.
13. Accordingly no good ground is made out.
14. The application stands rejected.
Order Date :- 22.5.2025
N.S.Rathour
(Vikas Budhwar, J)
