# Ali Jan v. State of U.P. & Anr

- **Citation:** Application U/S 482 No. 98 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-31
- **Case number:** Application U/S 482 No. 98 of 2020
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ali-jan-v-state-of-u-p-anr-46355
- **Pages:** 5

## Headnote

Instrument Act- Section 138 Code of
Criminal Procedure, 1973 - Section
482
-
Inherent
jurisdiction

-
Negotiable Instruments Act, 1881 -
Section
138
-

complaint
is
maintainable under only when it is
filed after due service of notice as
contemplated under Section 138 N.I.
Act.( Shakti Travel and Tours v. State
of Bihar ,2002 (9) SCC 415)(Para-5)

Notice dated 7th October, 2016 - sent by
registered post - no whisper regarding effective
service of notice at the end of the complainant
in the complaint - complainant has not
mentioned as to when he received back envelop
containing notice - whether after receiving
envelop back he had made complaint or prior to
that - In the absence of any such mention in
complaint itself - no inference of effective
service and requirement of 15 days prior notice
can be presumed to have been complied with -
pre-condition as contained under Section 138
N.I. Act has remained uncomplied with .
(Para - 4,11)

HELD:- If the service is refused or service by
absence could not be made effective, service
could be deemed sufficient as per law, but in
any case 15 days time prescribed by law should
always be fulfilled to maintain complaint under
section 138 of N.I.Act, 1881.(Para-13)

Application u/s 482 Cr.P.C. allowed.
(E-7)

List Of Cases Cited:-

## Text

3-5 All. Ali Jan Vs. State of U.P. & Anr.
1529

35. Let a copy of this order be
transmitted to the Sessions Judge/Special
Judge, PMLA, Lucknow forthwith.
----------
(2020)03-05ILR A1529
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2020

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 98 of 2020

Ali Jan ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Pavan Kishore, Sri Piyush Kishore
Srivastava

Counsel for the Opposite Parties:
A.G.A.

(A)
CriminalLaw-
Negotiable
Instrument Act- Section 138 Code of
Criminal Procedure, 1973 - Section
482
-
Inherent
jurisdiction

-
Negotiable Instruments Act, 1881 -
Section
138
-

complaint
is
maintainable under only when it is
filed after due service of notice as
contemplated under Section 138 N.I.
Act.( Shakti Travel and Tours v. State
of Bihar ,2002 (9) SCC 415)(Para-5)

Notice dated 7th October, 2016 - sent by
registered post - no whisper regarding effective
service of notice at the end of the complainant
in the complaint - complainant has not
mentioned as to when he received back envelop
containing notice - whether after receiving
envelop back he had made complaint or prior to
that - In the absence of any such mention in
complaint itself - no inference of effective
service and requirement of 15 days prior notice
can be presumed to have been complied with -
pre-condition as contained under Section 138
N.I. Act has remained uncomplied with .
(Para - 4,11)

HELD:- If the service is refused or service by
absence could not be made effective, service
could be deemed sufficient as per law, but in
any case 15 days time prescribed by law should
always be fulfilled to maintain complaint under
section 138 of N.I.Act, 1881.(Para-13)

Application u/s 482 Cr.P.C. allowed.
(E-7)

List Of Cases Cited:-

1. Shakti Travel and Tours v. St. of Bihar , 2002
(9) SCC 415,

2. Deepak Kumar & anr. Vs. St. of U.P. & anr,
2006 (8) ADJ, 427

3. Nawab Singh Vs. St. of U.P. & Anr.,
Application U/S 482 No. 2604 of 2020

4. Chand Mohd v. St. of U.P, (All) 2017 5 308

5. Yogendera Pratap Singh v. Savitri Pandey &
anr., 2014 LawSuit (SC) 793

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan , J.)

1. Heard Sri Pavan Kishore and Mr.
Piyush Kishore Srivastava, learned counsel
for the applicant and learned A.G.A. for the
State.

2. Learned counsel for the applicant
and the learned A.G.A. agree that the
present application may be disposed of at
this stage without calling for further
affidavits in view of the order proposed to
be passed today.

3. By means of this 482 Cr.P.C.
application, the applicant has questioned
summoning order dated 8th March, 2017 as
well as the proceedings of complaint case
1530 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 138 of Negotiable Instrument
Act, 1881 (hereinafter referred to as "N.I.
Act") registered as Complaint Case No. 846
of 2016 (Ayub Hasan Vs. Master Ali Jan),
pending in the court of learned Judicial
Magistrate, Garh Mukteshwar, Hapur.

4. Learned counsel for the applicant
has argued that it is admitted case of the
opposite party no. 2 that though, the
opposite party no. 2 has sent a notice dated
7th October, 2016, but the service of notice
has not been effected and therefore, the
complaint which has been filed on 7th
November, 2016, is not maintainable as the
time period of 15 days cannot be calculated
as to when the notice has been given to
opposite party no. 2. He has also submitted
that there is no whisper about service of
notice sent on 7th October, 2016. Under the
circumstances, pre-condition as contained
under Section 138 N.I. Act has remained
uncomplied with and, therefore according
to him, proceedings are clearly not
maintainable
under
the
Negotiable
Instruments Act, 1881.

5. Learned counsel for the applicant
has relied upon the judgment of the Apex
Court in the Case of Shakti Travel and
Tours v. State of Bihar reported in 2002
(9) SCC 415, wherein the Supreme Court
has very categorically held that complaint
is maintainable under Section 138 of
Negotiable Instrument Act, only when it is
filed after due service of notice as
contemplated under Section 138 N.I. Act.

6. Learned counsel for the applicant
has further placed reliance upon the
judgment of Single Judge of this Court in
the case of Deepak Kumar and Another
v. State of U.P. and Another, reported in
2006 (8) ADJ, 427, wherein this Court has
very categorically held that service of
notice is pre-condition to maintain a
complaint under Section 138 of the N.I.
Act. Considering in detail meaning of
effective service of notice prescribed as
pre-condition to maintain the complaint,
the Court vide para 9 and 10 held thus:

"9. Pondering over the rival
contentions, I find that there is substance in
the submissions raised by the counsel for
the applicant. As a fact, neither in the
complaint, nor in statement under Section
200, Cr. P.C. nor in the counter-affidavit
any date of service on notice demanding
repayment of cheque money from the
applicants is mentioned. No document was
also appended along with the complaint so
as to indicate the said date. Even during
the course of argument, the counsel for the
respondent-complainant could not point
out the date of service of such notice. Thus,
in the total absence of date of service of
notice demanding payment of the cheque
amount, no offence is made out against the
applicants. Moreover, it cannot be said that
any such notice was ever served on the
applicants and consequently fifteen days
period for making the payment of the
cheque money cannot be counted and
unless that is done no offence is made out
against the applicants. The contention of
respondent-complainant that the service is
to be presumed as also cannot be accepted
because Section 27 of General Clauses Act
does not take into its purview service by
private
courier.
For
a
proper
understanding of this submission Section
27 of the General Clauses Act is quoted
below:--

"Meaning of Service by post--
Where any (Central Act) or Regulation
made after the commencement of this Act
authorizes or requires any document to be
served by post, whether the expression
3-5 All. Ali Jan Vs. State of U.P. & Anr.
1531
"serve" or either of the expressions "give"
or "send" or any other expression is used,
then, unless a different intention appears,
the service shall be deemed to be effected
by properly addressing, pre-paying and
posting by registered post, a letter
containing the document, and unless the
contrary is proved, to have been effected at
the time at which the letter would be
delivered in the ordinary course of post."

10. Thus, the wordings of Section
27 of the General Clauses Act clearly
indicates that this section deals only with
service by ''Post' and that too "registered
service"
when
such
a
service
is
contemplated by the Act itself. Attour. no
other mode of service is embraced in
Section 27. The condition precedent for the
applicability of this section are firstly, that
the service must be provided by the Act
itself and secondly, that such "service shall
be deemed to be affected by properly
addressing, pre-paying and posting by
registered post" (Emphasis mine). Unless
the twin conditions are satisfied Section 27
of the General Clauses Act will not apply.
In the present case the second condition is
not satisfied and therefore the service of
notice on the applicants cannot be
presumed. Since the legislature has kept
service by private courier outside the
purview of the Section 27 of the General
Clauses Act, therefore the Courts cannot
implant such presumption of service into
that section and rightly so because private
courier
services
are
privately
run
businesses without any authenticity of
service. (Emphasis mine) consequently, the
contention of the learned counsel for the
applicant that the service should be
presumed in the present case cannot be
accepted as it does not hold good on the
provision of the statute itself and has to be
rejected. Resultantly, the submission of the
counsel for the applicant that in the present
case no offence is made out holds good and
deserves to be accepted and I hold so."

7. Learned counsel for the applicant
has also placed reliance upon the judgment
of this Bench in the case of Nawab Singh
Vs. State of U.P. & Another (Application
U/S 482 No. 2604 of 2020, decided on 21st
January, 2020).

8. Countering the argument, learned
A.G.A. has submitted that condition of service
of notice virtually stands complied with. In
support of his submission, the learned A.G.A.
has placed relinace upon the judgment of
Single Judge of this Court in the case of
Chand Mohd v. State of U.P, reported in
Laws (All) 2017 5 308. In paragraph nos. 19
and 20, the learned Single Judge has held thus:

"19. Perusal of Section 27 of the
General Clauses Act, as aforequoted clearly
indicates that there is a presumption of service
by registered post. The provisions of the
aforesaid Section 27 of the Act regarding
presumption of service has been interpreted by
Hon'ble Supreme Court and it has been held
that there is a rebuttable presumption of
service by registered post. Reference in this
regard may be had to the judgment of Hon'ble
Supreme Court in the case of Gujarat
Electricity Board v. Atmaram Sungomal
Poshani12; Commissioner of Income Tax
(Adm.), Bengal v. V.K. Gururaj and Ors.13,
State of U.P. v. T.P. Lal Srivastava14;
Adavala Suthaiah and Ors. Special Deputy
Collector, Land Acquisition and Ors. Anr.15
and Shimla Development Authority and Ors. v.
Santosh Sharma (Smt.) and Anr., (1997) 2
SCC 637.

20. It has also been well settled by
Hon'ble Supreme Court that when notice is
sent at the correct address by registered
1532 INDIAN LAW REPORTS ALLAHABAD SERIES
post and neither acknowledgment nor
undelivered registered cover is received
back then there is presumption of service
although rebuttable. The burden to rebut
presumption lies on the party challenging
the factum of service. Reference in this
regard may be had to the judgments of
Hon'ble Supreme Court in the case of
Indian Bank v. Datla Venkata Chinna
Krishnam Raju17; Ram Chandra Verma v.
Jagat
Singh
Singhi
and
others18;
ATTABIRA Regulated Market Committee v.
Ganesh Rice Mills19; Union of India v.
Ujagar Lal20; C.C. Alavi Haji v. Palapetty
Muhammed21 (Paras 10 & 15 ) and Sunil
Kumar Shambhudayal Gupta (DR) and
others v. State of Maharashtra22 (Paras 53
to 56 )."

9. Banking upon the judgment, learned
counsel for the applicant submits that the
complaint was ultimately maintainable and it
cannot be said that mandatory requirement of
law was not fulfilled.

10. I have considered the submissions of
the learned counsel for the applicant and the
learned A.G.A. for the State and have gone
through the records of the present application as
well as the impugned order. Normally, this
Court would have issued notice to opposite
party no.2 to file counter affidavit but in view of
mutual consent of learned counsel for the
applicant and learned A.G.A. as recorded
above, no purpose would be served by keeping
the present application pending. However,
liberty is reserved for opposite party no.2 to file
an appropriate application, for modification or
recall of this order, if he feels so aggrieved.

11. Having heard the arguments advanced
across the Bar and pleadings advanced and having
perused the record, I find two material aspects
coming out from the pleadings very clearly: one
that notice dated 7th October, 2016 infact was sent
by registered post and, therefore, it cannot be said
that notice was sent on itself, and second, it clearly
comes out from the record that there is no whisper
regarding effective service of notice at the end of
the
complainant
in
the
complaint.
The
complainant has not mentioned as to when he
received back envelop containing notice and
whether after receiving envelop back he had made
complaint or prior to that. Accordingly even if he
made complaint after accepting of the notice from
the post office with note 'left', he could have filed
such complaint only after expiry of 15 days but it
is not the case here. Secondly if he considers that
service of notice was effected then in all
probability complaint should have been filed only
after expiry of 15 days, and the date of service
would have been clearly mentioned in the
complaint. In the absence of any such mention in
complaint itself, no inference of effective service
and requirement of 15 days prior notice can be
presumed to have been complied with.

12. Under the circumstances, I am of the
considered opinion that case of the complainant
stands fully covered by the judgment of the Apex
Court in the case Shakti Travel and Tours
(supra) and in the case of Deepak Kumar and
Another (supra).

13. So far judgment relied upon by
counsel for the respondent is concerned,
that refers to the word 'service', it cannot be
doubted that in case if the service is refused
or service by absence could not be made
effective,
service
could
be
deemed
sufficient as per law, but in any case 15
days time prescribed by law should always
be fulfilled to maintain complaint under
section 138 of N.I.Act, 1881, which is
lacking in the present case.

14. In view of above, the application
under Section 482 Cr.P.C. stands allowed
and
the
proceedings
are
quashed.
3-5 All. Nusrat & Ors. Vs. State of U.P. & Ors.
1533

15. It is however always open for
opposite party no. 2 to proceed in
accordance with law in the light of the
judgment of Apex Court in the case of
Yogendera Pratap Singh v. Savitri
Pandey and Another, reported in 2014
LawSuit (SC) 793.
----------
(2020)03-05ILR A1533
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.01.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 Cr.P.C. No. 1652 of 2020

Nusrat & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Nazrul Islam Jafri, Sri Sadaful Islam Jafri

Counsel for the Opposite Parties:
A.G.A., Sri Akhilesh Chandra Shukla

(A) Criminal Law- Dowry prohibition
Act,1961- Section 3⁄4-Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - Indian Penal
Code, 1860 - Sections 498A, 323, 504,
506, 376D, 307, 201, 342 I.P.C. & - in
case of recovery of further evidence
related with above offence, further
investigation under Section 173(8) of
Cr.P.C. is to be directed - order of
magistrate for further investigation -
formal permission - according with
law. (Para-10)

First Information Report lodged against
accused persons - accusation of offences
punishable under Sections 376-D, 307 I.P.C. -
investigated and mentioned that those offences
were not made out - nothing new added by I.O
- since the beginning, and the contention of
informant-victim was intact - Subsequent
investigation
mentioned
the
evidence
collected
after
submission
of
previous
charge-sheet
-
on
the
basis
of
that
evidence, subsequent charge-sheet was
filed, over which cognizance was taken
.(Para-11)

HELD:- In exercise of inherent jurisdiction
under Section 482 of Cr.P.C., court is not to
embark upon factual matrix because it may
prejudice trial and the fact is to be seen by
trial court .(Para-11)

Application u/s 482 Cr.P.C. dismissed.
(E-7)

List Of Cases Cited:-

1. Vinubhai Haribhai Malaviya & ors. Vs. St. of
Gujrat & anr., AIR 2019 SC 5233

2. Bikash Ranjan Rout Vs. St. through the
Secretary (Home), Govt. of NCT Delhi, AIR 2019
SC 2002

3.
Amrut
bhai
Shambhubhai
Patel
Vs.
Sumanbhai Kantibhai Patel & ors., AIR 2017 SC
774

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. The applicants namely, Nusrat,
Noor
Mohammad,
Nurkan,
Furkana,
Anjum, by means of this application under
Section 482 Cr.P.C., have invoked the
inherent jurisdiction of the Court with
prayer to set aside impugned charge-sheet
dated 26.9.2019, order dated 4.9.2019,
passed by Judicial Magistrate, Mawana,
Meerut as well as the entire proceeding of
Criminal Case No. 7075/9 of 2019 (State
V/s Nusrat), arising out of Case Crime No.
4 of 2019, under Sections 498A, 323, 504,
506, 376D, 307, 201, 342 I.P.C. & Section
3⁄4 of D.P. Act, P.S. Mawana, District
Meerut, pending in the Court of Special
Chief Judicial Magistrate, Meerut, which
was subsequently filed after filing of