Section 528 BNSS application to quash Section 138 NI Act proceedings dismissed; service of demand notice and blank cheque defence are matters of trial; summoning order upheld.
Application to quash proceedings dismissed; applicant may raise legal and factual defences at trial. ¶¶18
The question of service of the statutory demand notice is a matter of trial and cannot be adjudicated at the stage of quashing proceedings under Section 528 BNSS. ¶¶13
Neutral Citation No. - 2025:AHC:143695
Court No. - 75
Case :- APPLICATION U/S 528 BNSS No. - 30722 of 2025
Applicant :- Rampal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Kumar Counsel for Opposite Party :- G.A.
Hon'ble Vikas Budhwar,J.
order cannot be sustained for the simple reason that first of all the applicant had given a signed blank cheque to the opposite party no. 2 with respect to purchase of a motorbike, however, the same was misutilized and it has been dishonoured. It is also contended that from the perusal of the complaint, it is apparent that the address so shown of the applicant who has been arraigned as an accused is resident of village Paniyali Kasimpur, Dr. Khash Tehsil Devband, District Shaharanpur present resident of Prem Nagar, the said house is Raj Kiran Singh advocate but the said statutory demand notice has not been sent to the current address. Submission is that there has been any infraction under Section 138 and 142 of the N.I. Act, there is no legal debt or liability so as to invoke the provisions of Section 138 of the Act.
"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."
Order Date :- 21.8.2025 A. Prajapati
Digitally signed by :- ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad
2 issues framed by the court
Whether the summoning order can be quashed on the ground that the statutory demand notice was not served at the correct address of the applicant.¶¶13
The defence that the cheque was a blank signed cheque given for purchase of a motorbike and misused is a question of trial and not a ground for quashing the summoning order.ratio¶¶17
Whether the defence that the cheque was a blank signed cheque given for motorbike purchase and misused can be considered at the stage of quashing proceedings.¶¶17
Colour shows how this judgement treated each authority
Ajeet Seeds Ltd. Vs. K. Gopala KrishnaiahRelied on¶¶14
Ajeet Seeds Ltd. Vs. K. Gopala Krishnaiah, (2014) 12 SCC 685 · Who else cites this
Vinod ShivappaReferred¶¶16
Vinod Shivappa
C.C. Alavi HajiReferred¶¶16
C.C. Alavi Haji
Shakti Travel & ToursReferred¶¶16
Shakti Travel & Tours
7 provisions across 5 enactments
How this case reached the court
summoning order dated 17.02.2025 passed by the learned Civil Judge (Jr. Div.)/ Judicial Magistrate, Deoband, District Saharanpur in Complaint Case No. 2079 of 2024 (Monu Kumar Vs. Rampal) under Section 138 Negotiable Instruments Act¶¶7
Civil Judge (Jr. Div.)/ Judicial Magistrate, Deoband, District Saharanpur · 17.02.2025
Complaint lodged by opposite party no. 2 on 31.07.2024 alleging cheque No. 187712 of Rs. 70,000/- dated 20.04.2024 presented on 17.06.2024, dishonoured on 18.06.2024, statutory demand notice issued on 10.07.2024 refused on 12.07.2024, applicant summoned on 17.02.2025.¶¶8
As recorded by the court registry
2 orders share this CNR
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