Allahabad High Court
Raghuveer Singh And Another vs State Of U.P. And Another on 24 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:171710
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 35864 of 2025
Raghuveer Singh And Another
.....Applicant(s)
Versus
State Of U.P. And Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Ashish Goyal, Ullash Pandey
Counsel for Opposite Party(s)
:
G.A.
Court No. - 75
HON'BLE VIKAS BUDHWAR, J.
1. Heard Sri Ashish Goyal, learned counsel for the applicants as well as Sri Moti Lal, learned A.G.A. for the State.
2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 13.08.2022, passed by Additional Chief Judicial Magistrate, Court No.2, Agra in Complaint Case No. 7049 of 2022 (Prem Singh Vs. Raghuveer Singh and others), Under Section 138 N.I. Act, as well as entire criminal proceedings of Complaint Case No. 7049 of 2022, pending in the court of Additional Court, Court No.2, Agra.
3. The case of the applicant is that a complaint stood lodged on 01.06.2022 by the O.P. No.2 under Section 138 of N.I. Act against the applicant with an allegation that with respect to discharge of a liability, the applicant herein had drawn a cheque bearing number "000034" for an amount Rs.9,80,000/- on 12.01.2022, which on presentation in the bank came to be dishonoured on 13.1.2022 followed by a statutory demand notice dated 04.02.2022 and thereafter on the assurance of the applicant, the cheque was again represented on 25.03.2022 which was dishonoured on 28.03.2022 and a statutory demand notice came to be issued on 25.04.2022, which as per the averment contained in para-9 of the complaint came to be returned with the remark that it was refused to be received on 26.04.2022 followed by a complaint on 01.06.2022 and thereafter the applicants came to be summoned on 13.08.2022 under Section 138 of the N.I. Act. Learned counsel for the applicant has submitted that the complaint so preferred by O.P. No.2 is beyond the permissible period, as provided under Section 138/142 of N.I. Act for the simple reason that as per the recital contained in para-9 of the complaint, once the statutory demand notice came to be issued on 25.04.2022 and there is a recital to the extent that on 26.04.2022, it was returned and not received, then the complaint ought to have been filed within a period of one month, as specified under Section 142 of the N.I. Act.
4. Learned A.G.A. on the other hand submits that once the cheque stood drawn and it has been dishonoured, then the presumption under Section 139 of the N.I. Act would be there.
5. I have heard the submissions so made across the Bar and perused the record carefully.
6. Apparently, with respect to the dishonour of a cheque on a second occasion on 28.03.2022, a statutory demand notice came to be issued on 25.04.2022, which as per the recital contained in para-9 was refused to be received on 26.04.2022. Now two questions arise. Firstly, whether the service of the notice upon O.P. No.2 would be deemed to be sufficient or not. In C.C. Alavi Haji Vs. Palapetti Muhammed and another, (2007) 6 SCC 555, the following was observed: - "9. All these...... "15. We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice. This, however, is a matter of evidence and proof. Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, it would be pre- mature at the stage of issuance of process, to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure."..."
7. Thus in view of the above noted decision, the service of the notice upon the applicants is deemed to be sufficient. The second question which would arise would be as to whether 15 days time is to be accorded to the applicant accused to make the payment and the complaint is to be filed within a period of 30 days from arising of the cause of action. Importantly, Section 138(b) provides that the payee or the holder in due course of the cheque, as the case may be, is to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and if the drawer of the cheque fails to make the payment of the said amount of money of the payee or the holder as the case may be in due course of the cheque within 15 days of the receipt of the notice, then as per the provisions contained in sub-clause (b) of Sub-Section (1) of Section 142 of N.I. Act, a complaint is to be made within one month from the date when cause of action arises under clause- C of the proviso of Section 138 of N.I. Act. Apparently, the date 26.04.2022, when the statutory demand notice came to be returned with the remark intentionally not received, then 15 days is to be accorded for making the payment and thereafter within 30 days of the cause of action, the complaint is to be lodged. In the present case the complaint has been filed much before 45 days. Thus there is no error committed by the court below in summoning the applicant.
8. Accordingly, interference is declined.
9. At this stage, the applicant seeks to file application before the court below for enlargement on bail in light of the judgment in the case of Satender Kumar Antil Vs. Central Bureau of Investigation, (2022) 10 SCC 51.
10. Sri Moti Lal, learned A.G.A. has no objection to the same.
11. Considering the submissions raised at the Bar and the statements so sought to be made by them, the application stands disposed of while observing that in case appropriate proceeding in the form of bail application is preferred before the court below by 17.10.2025, then the same shall be decided with most expedition strictly in accordance with the law of the land keeping in view the judgment in the case of Satender Kumar Antil (supra).
12. Till 17.10.2025, no coercive action shall be taken against the applicants with respect to summoning order dated 13.08.2022, passed by Additional Chief Judicial Magistrate, Court No.2, Agra in Complaint Case No. 7049 of 2022 (Prem Singh Vs. Raghuveer Singh and others), Under Section 138 N.I. Act, as well as entire criminal proceedings of Complaint Case No. 7049 of 2022, pending in the court of Additional Court, Court No.2, Agra.
13. The protection accorded to the applicants is only available subject to compliance of terms and conditions and timeline as provided herein and in case of default, the order shall stand vacated without reference to the Bench.
(Vikas Budhwar,J.)
September 24, 2025
N.S.Rathour
