Allahabad High Court
Pushkar Gupta vs State Of U.P. And Another on 27 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:90250
Court No. - 73
Case :- APPLICATION U/S 528 BNSS No. - 15920 of 2025
Applicant :- Pushkar Gupta
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Ashish Kumar Gupta
Counsel for Opposite Party :- G.A.
Hon'ble Vikas Budhwar,J.
1. Heard Sri Ashish Kumar Gupta, learned counsel for the applicant as well as Sri Pankaj Kumar Rai, learned State Law Officer for the State/opposite party no.1.
2. This application under Section 528 of the BNSS has been filed by the applicant to quash the entire proceeding as well as Summoning Order Dated 12.12.2024 passed by, Chief Judicial Magistrate, Court, Bhadohi in Complaint Case No. 21997 of 2024, Sujeet Kumar Singh Versus Pushkar Gupta, Under Section 138 of N.I. Act, Police Station- Gopiganj, District-Bhadohi pending in the Court of Additional Chief Judicial Magistrate, Bhadohi.
3. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no.2 on 1.6.2024, under Section 138 of the N.I. Act with an allegation that the father of the applicant owns a jewellery shop and certain payments were made by the opposite party no.2 to the applicant with relation to purchase of jewellery, however, the applicant in order to discharge the liability had drawn a cheque of an amount of Rs.4,30,000/- bearing no.000005 dated 21.2.2024 which on presentation in the bank was dishonoured on several occasions followed by a statutory demand notice dated 9.5.2024 and the complaint dated 1.6.2024, thereafter, the applicant has been summoned under Section 138 of the N.I. Act on 12.12.2024.
4. Contention of the learned counsel for the applicant is that there is no legal enforceable debt or liability so as to attract the provisions of Section 138 of the N.I. Act for the simple reason that first of all the certain payments were made to him which has been reflected in para 3 of the complaint and some payments were made to a third party and not to the applicant further the applicant has already made payment of Rs.1,06,000/- thus in view of the provisions contained under Section 56 of the N.I. Act, the amount reflected in the cheque would not be the actual amount as part payment whereof has been made.
5. Submission is that though in para-6 of the complaint there is a recital about issuance of a statutory demand notice dated 9.5.2024 but there is no date mentioned when the said notice was served upon the applicant, thus, according to him the complaint is bound to fall.
6. Learned State Law Officer on the other hand submits that once a cheque stood drawn then presumption under Section 139 of the N.I. Act would be in the favour of the holder.
7. I have heard the submissions so made across the bar and perused the record carefully. The sole question which arises for determination in the present proceedings at this stage is the extent of judicial intervention. Apparently, a cheque stood drawn of an amount of Rs.4,30,000/- which is stated to have been dishonoured. As regards the theory propounded by the learned counsel for the applicant that the payments were alleged to have been made in cash or by other mode and some of the payments as reflected in para 3 of the complaint was made to a third person, thus, there happens to be no legal enforceable debt or liability is concerned, the same is not required to be gone into at this stage particularly when the cheque stood drawn of an amount of Rs.4,30,000/-. The magnitude and the velocity of the said defence would be tested on its own strength when a decision is to be taken for acquittal or conviction.
8. As regards the submission of the learned counsel for the applicant that a part payment of Rs.1,06,000/- has already been made is concerned, learned counsel for the applicant has invited the attention towards the screenshot, this Court is also not required to go into the said issue for the simple reason that this Court cannot enter into factual arena in that regard. In so far as the argument so sought to be raised that the complaint cannot be proceeded in any manner whatsoever in absence of the date of service is concerned, the same is also not liable to be accepted at the stage of summoning particularly it would be suffice that a statutory notice is issued, the question of service or non service is a matter of trial.
9. The 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."
10. Analysing the case from the four corners of law, no case is made out for interference. The application stands rejected.
Order Date :- 27.5.2025
piyush
