Allahabad High Court
Eteshamul Hak Alias Chhote Bhai ... vs State Of U.P. And Another on 10 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:160474
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 34496 of 2025
Eteshamul Hak Alias Chhote Bhai Proprioter And Another
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Yogendra Gupta
Counsel for Opposite Party(s)
:
G.A.
Court No. - 75
HON'BLE VIKAS BUDHWAR, J.
1. Heard Sri Yogendra Gupta learned counsel for the applicants as well as Sri Moti Lal learned AGA for the State.
2. This is an application filed under Section 528 of the B.N.S.S. for quashing the the summoning order dated 23.09.2024 as well as N.B.W. order dated 4.07.2025 and entire proceeding of complaint Case No.17728 of 2024 (Measures Balkeswarnath enterprises V. Eteshamul hak @ chhote bhai proprioter and others) arising out of complaint no- 17728 of 2024 P.S. kamla nagar, District: Agra which is pending before learned Additional chief judicial magistrate court no.07 Agra.
3The case of the applicants is that on 19.7.2024 a complaint was lodged by the opposite party no.2 under Section 138 of the N.I. Act against the applicants with an allegation that with respect to discharge of liability had drawn a cheque bearing no.006838 of Rs.2,03,846/- on 30.5.2024 which on presentation in the bank was dishonoured on 31.05.2024 that the account has been closed followed by a statutory demand notice dated 11.06.2024, a complaint on 19.07.2024 and the applicants came to be summoned under Section 138 of the N.I. Act on 23.9.2024.
4. Learned counsel for the applicants has submitted that the summoning order cannot be sustained for more than one reason. Firstly, once the account stood closed then he does not come within the definition of dishonouring of a cheque and thus there is no question of attraction of the provisions of Section 138 of the N.I. Act and secondly statutory demand notice was sent to wrong address and the applicants did not receive the same.
5. Learned AGA on the other hand submits that once the cheques stood drawn and it was dishonoured that the presumption under section 139 of the N.I. Act would be there.
6. I have heard the submissions so made across the bar and perused the record carefully.
7. Apparently, the complaint alleges drawing of a cheque which came to be dishonoured. The question whether the dishonour of a cheque on account of the account being closed is an offence under Section 138 of the N.I. Act came up for consideration before the Hon. Apex Court in M/s Laxmi Dyechem vs State Of Gujarat & Ors (2012) 13 SCC 375 wherein in paragraph no. 16 has observed as under:-
"16. The above line of decisions leaves no room for holding that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. We find ourselves in respectful agreement with the d decision in Magma cases that the expression "amount of money is insufficient" appearing in Section 138 of the Act is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer" are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the "signatures do not match" or that the "image is not found", which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act.?
8. More so it is for the applicants to contest the trial while taking the defence that the account was closed for certain circumstances which were inevitable.
9. As regards the submission of learned counsel for the applicants is that the applicants have not received the statutory demand notice is concerned suffice is to say that what would be relevant is a clear recital in the complaint regarding issuance of a statutory demand notice. The question whether it has been served or not is a question of trial particularly in absence of any convincing document available on record, this Court is not required to delve into the said issue as the same is to be proved while leading evidence in the trial. In Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685 it was 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. As regards the judgment in the case of Jugesh Sehgal vs. Shamsher Singh Gogi, Criminal Appeal No.1180 of 2009 decided on 16.7.2009 is concerned the same may not be applicable in the facts of the case.
11. The court below while summoning the applicants has considered each and every aspect of the matter which is imperative before summoning the accused in the proceedings under Section 138 of the N.I. Act.
12. Accordingly, interference is declined, application stands disposed of leaving it open to the applicant to raise all legal and factual issues before the court below while contesting the trial and this Court has no reasons to disbelieve that the same shall be considered in accordance with law.
13. At this stage learned counsel for the applicants has submitted that there is nothing on record that the applicant is liable to pay any amount as they happened to be a business transaction but there is no invoice produced so as to substantiate the validity, in the opinion of the court at this stage summoning this Court is not required to go into the same as taking the subject matter of trial.
(Vikas Budhwar,J.)
September 10, 2025
piyush
