Allahabad High Court
Jabid vs State Of U.P. And Another on 4 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:156468
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 27872 of 2025
Jabid
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Sarthak Verma
Counsel for Opposite Party(s)
:
G.A.
Court No. - 75
HON'BLE VIKAS BUDHWAR, J.
1. Heard Shri Sarthak Verma, learned counsel for the applicant and Sri Kripa Shanker, learned AGA for the State.
2. This application under Section 528 BNSS has been filed by the applicant to quash the entire proceedings of the Complaint Case No. 9404 of 2024 Vistaar Financial Services(P) Ltd. Versus Jabid under Sections 138 Negotiable Instruments Act Police Station Kamla Nagar District Agra pending before the learned court of the Additional Chief Judicial Magistrate Court No.-7 Agra.
3. Learned counsel for the applicant submits that a complaint was lodged on 24.05.2024 by the opposite party no. 2 against the applicant, with an allegation that with respect to discharge of a liability, the applicant had drawn a cheque bearing No. 884745 dated 29.03.2024 of Rs. 1,98,000/- which on presentation in the bank which dishonoured on 03.04.2024 with the remark 'insufficient funds', a statutory demand notice came to be issued on 16.04.2024 and a complaint on 24.05.2024 thereafter the applicant came to be summoned on 05.06.2024.
4. Learned counsel for the applicant submits that the summoning order cannot be sustained for more than one reasons, firstly, the applicant had not received the statutory demand notice dated 16.04.2024 as from the perusal of the complaint insofar as the address of the applicant has been shown i.e. pin code 282001. He submits that the pin code is actually 281001. He has also produced before this Court a document downloaded from the official website of department of post so as to contend that the pin code which has been reflected in the complaint and the postal receipt are not the accurate, thus, the presumption under section 27 of the General Clauses Act insofar as it relates to be deemed sufficiency of service cannot be made out. Secondly, the applicant has already approached the Lok Adalat on 14.12.2022 for getting the matter dissolved as substantial amount has been paid and in the wake of the pendency of the said proceedings, now the proceedings under section 138 of the N.I. Act has been lodged. Further submission is that there is no occasion for the applicant to have issued a cheque of Rs. 1,98,000/- for disbursement of the said amount, particularly, when already installment was being paid and the house stood hypothicated with the opposite party no. 2 and the said cheque at best is a security cheque which does not answer the description of debt and liability.
5. Learned AGA has opposed the application while contending that once the cheque had been drawn then there happens to be a statutory presumption under Section 139 of the Act would be there.
6. I have heard learned counsel for the parties and gone through the records carefully.
7. The sole question which arises for determination in the present proceedings is to the extent of judicial intervention. Apparently, the allegation in the complaint is with respect to drawing of a cheque and dishonouring of the same. The objection of the applicant that the pin code is 281001 and not 282001 and the said statutory demand notice was not served upon the applicant is concerned. This Court at the stage of summoning is not required to go into the said issue as what would be suffice would be a recital about issuance of a statutory demand notice and whether it has been served or not is a subject matter of trial.
8. 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. As regards, the submission of the learned counsel for the applicant is that the said cheque can at best be said to be a security cheque thus it does not answer the description of debt or liability in view of the provisions contained under section 138 of the N.I. Act is concerned, the same is also not liable to be gone at this stage, particularly, the same is subject matter of trial.
10. In Hon'ble Apex Court in the case of M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another (2022) 18 SCC 631 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."
11. In Sunil Todi and others Vs. State of Gujarat, (2022) 16 SCC 762 the Hon'ble Apex Court has reiterated the aforesaid law.
12. Apart from the same, the other objection that the applicant has already approached the Lok Adalat by preferring application and, thus, the present proceedings cannot be continued is also not convicible, particularly, there is no restraint or bar or embargo in not proceeding with the case relatable to Section 138 of the N.I. Act.
13. As regards, the submission is that already the house stood hypothecated and there is no question of drawing of cheque is concerned, this Court at the stage of summoning is not required to go into the said aspect of the matter, moreover, the presumption under Section 118 and Section 139 of the Act is there.
14. Accordingly, the interference is declined, the application stands disposed of.
15. Leaving it open to the applicant to raise legal and factual grounds while contesting the trial.
(Vikas Budhwar,J.) September 4, 2025 A. Prajapati