# Anwar Saifi v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 84
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-20
- **Case number:** Criminal Misc. Application U/S 482 No. 28521 of 2022
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anwar-saifi-v-state-of-u-p-anr-50031
- **Pages:** 7

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - The Negotiable Instruments Act,
1881 - Section 138 - Dishonor of cheque
for insufficiency, etc., of funds in the
accounts - when the notice is sent by
registered post by correctly addressing
the drawer of the cheque, the mandatory
requirement of issue of notice in terms of
Clause (b) of proviso to Section 138 of the
Act stands complied with. (Para -15)

(B) The general clauses act, 1897 - section
27 - meaning of service by post - service
of notice has been effected when it is sent
to the correct address by registered post.
(Para - 15)

(b) Indian Evidence Act, 1872 - Section 114
- when a notice is sent by registered post
and is returned with a postal endorsement
refused or not available in the house or
house locked or shop closed or addressee
not in station, due service has to be
presumed - once the notice is sent by the
registered post by correctly addressing the
drawer of cheque, the service of notice
deemed to have been effected.(Para -15,18 )
4 All. Anwar Saifi Vs. State of U.P.& Anr.
85
Complainant was offered money by applicant to
keep - applicant dishonored two cheques -
complainant demanded money back - applicantaccused
presented
two
more
cheques
-
dishonored
due
to
insufficient
funds
-
complainant confronted applicant and asked him
to present cheques again - bank dishonored
cheques
-
complainant
returned
them
-
applicant not gave any heed to demand of
complainant - not made payment- complainant
filed a legal notice - sent by registered post with
acknowledgment due - Misconceived request for
specific service date in complaint.(Para -
4,5,14)

HELD:-In view of Section 27 of General Clauses
Act, 1987 and Section 114 of the Evidence Act,
1872 once the notice is sent by the registered
post by correctly addressing the drawer of the
cheque, the service of notice is deemed to have
been effected. Notice was sent on 11.01.2016
on a local address by the registered post,
hence, the service of notice is deemed to have
been effected.(Para - 18)

Petition dismissed. (E-7)

List of Cases cited:

## Text

84 INDIAN LAW REPORTS ALLAHABAD SERIES
further demand of dowry nor there is any
proof of conspiracy by them in this regard
nor they were in any way beneficiary to the
alleged demand of dowry, simply because
they are the real sisters of applicant no.1,
they were bound to accompany and
participate in related function with her
brother and parents. There is general and
omnibus allegations against them. There is
no specific allegation against applicant
nos.4 and 5. On this score learned counsel
for the applicants has relied on Kahkashan
Kausar @ Sonam Vs. State of Bihar,
2022 0 Supreme (SC) 117 and Geeta
Mehrotra Vs. State of U.P. and others,
2012 (10) ADJ 464 which are fully
applicable to this case in support of both
the applicants.

22. On the basis of above discussion,
this Court is of the view that the impugned
criminal proceedings against applicant nos.4
and 5 is nothing but misuse and abuse of
legal process and to secure the ends of justice,
it is mandatory to exercise the inherent power
of this Court under Section 482 CrPC and to
quash the entire criminal proceedings with
regard to applicant nos.4 and 5, Puja and
Meenu. Hence, this application is liable to be
allowed accordingly.

ORDER

23. This application under Section 482
CrPC is dismissed in respect of applicant
nos.1, 2, 3, 6, 7 and 8 on account of not
pressing the petition by the learned counsel
for the applicants.

24. This application is partly allowed
with regard to applicant nos.4 and 5, Puja and
Meenu and the entire criminal proceedings of
the aforementioned case in respect of
applicant no.4, Puja and applicant no.5,
Meenu are hereby quashed.
----------
(2023) 4 ILRA 84
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.02.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Misc. Application U/S 482 No. 28521 of
2022

Anwar Saifi ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Sushil Kumar Pandey

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - The Negotiable Instruments Act,
1881 - Section 138 - Dishonor of cheque
for insufficiency, etc., of funds in the
accounts - when the notice is sent by
registered post by correctly addressing
the drawer of the cheque, the mandatory
requirement of issue of notice in terms of
Clause (b) of proviso to Section 138 of the
Act stands complied with. (Para -15)

(B) The general clauses act, 1897 - section
27 - meaning of service by post - service
of notice has been effected when it is sent
to the correct address by registered post.
(Para - 15)

(b) Indian Evidence Act, 1872 - Section 114
- when a notice is sent by registered post
and is returned with a postal endorsement
refused or not available in the house or
house locked or shop closed or addressee
not in station, due service has to be
presumed - once the notice is sent by the
registered post by correctly addressing the
drawer of cheque, the service of notice
deemed to have been effected.(Para -15,18 )
4 All. Anwar Saifi Vs. State of U.P.& Anr.
85
Complainant was offered money by applicant to
keep - applicant dishonored two cheques -
complainant demanded money back - applicantaccused
presented
two
more
cheques
-
dishonored
due
to
insufficient
funds
-
complainant confronted applicant and asked him
to present cheques again - bank dishonored
cheques
-
complainant
returned
them
-
applicant not gave any heed to demand of
complainant - not made payment- complainant
filed a legal notice - sent by registered post with
acknowledgment due - Misconceived request for
specific service date in complaint.(Para -
4,5,14)

HELD:-In view of Section 27 of General Clauses
Act, 1987 and Section 114 of the Evidence Act,
1872 once the notice is sent by the registered
post by correctly addressing the drawer of the
cheque, the service of notice is deemed to have
been effected. Notice was sent on 11.01.2016
on a local address by the registered post,
hence, the service of notice is deemed to have
been effected.(Para - 18)

Petition dismissed. (E-7)

List of Cases cited:

1. M.S. Shakti Travel & Tours Vs St. of Bihar ,
2022 (9) SCC 415

2. C.C. Alavi Haji Vs Palapetty Muhammed &
anr. , (2007) 6 SCC 555

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard learned counsel for the
applicant and learned A.G.A. for the State.

2. In view of the order which is
proposed to be passed, notice to respondent
no. 2 is dispensed with.

3. By This petition, the petitioner has
prayed
for
quashing
the
impugned
proceeding of complaint case No. 3792/9 of
2016 as well as the summoning order dated
05.04.2016 passed by the learned trial court.

4. Brief facts of the case is that an
offer was given by the applicant to the
complainant to keep his money with him.
Believing that the complainant deposited
Rs 1,00,000/- with the applicant in
presence of a witness and promised to pay
him back anytime after 1 year. The
complainant further gave different amounts
on different dates and all those amounts
were got entered into a passbook by the
applicant. After one year, the complainant
demanded his
money back,
then
on
10.09.2015, a check of rupees Rs. 3,50,000/-
drawn at Punjab National Bank numbered as
958870, and another check dated 20.09.2015
of Rs. 3,50,000/-, numbered is 958871 were
given at the house of the complainant by the
applicant-accused which were presented by
the complainant at the concerned bank. Those
cheques were dishonored due to insufficiency
of funds. Then the complainant confronted
with the applicant regarding the dishonor of
cheque and then he asked him again to
present the cheque on 23.12.2015 as he has
deposited the amount in the bank. Again
checks were presented on 23.12.2015,
however, the cheques were dishonored by the
bank on 29.12.2015 on account of of
insufficient funds and were returned.

5. Thereafter, the compliment gave a
notice
dated
11.01.2016
through
his
Council to the applicant. It is alleged in the
complaint that after receiving the notice,
the applicant has not given any heed to the
demand of the complainant neither he has
made the payment, hence, the complaint
was filed.

6. Learned counsel for the applicant
submits that that there is no averment in the
complaint disclosing the date of service to
the applicant and therefore, the complaint
case ought to have been dismissed as
premature and summoning order should not
86 INDIAN LAW REPORTS ALLAHABAD SERIES
have been passed. It is further submitted
that even if the legal notice dated
11.01.2016 is accepted as served then also
the complaint filed by the complainant is
premature.

7. Having heard the learned counsel
for the complainant and the learned A.G.A.
and perusal of the record also including the
summoning order which shows that the
learned trial court has considered the fact
that the cheques has been produced before
the bank in the stipulated period of three
months.
Cheques
were
returned
on
29.12.2015 and the notice was given by the
complainant on 11.01.2016 and after prima
facie
being
satisfied
regarding
the
compliance of three conditions provided
under Section 138 of N.I. Act, the
summons appears to have been issued.
Section 138 of N.I. Act is extracted below:-

138 Dishonour of cheque for
insufficiency, etc., of funds in the account.
--Where any cheque drawn by a person on
an account maintained by him with a
banker for payment of any amount of
money to another person from out of that
account for the discharge, in whole or in
part, of any debt or other liability, is
returned by the bank unpaid, either because
of the amount of money standing to the
credit of that account is insufficient to
honour the cheque or that it exceeds the
amount arranged to be paid from that
account by an agreement made with that
bank, such person shall be deemed to have
committed an offence and shall, without
prejudice to any other provisions of this
Act, be punished with imprisonment for [a
term which may be extended to two years],
or with fine which may extend to twice the
amount of the cheque, or with both:
Provided that nothing contained in this
section shall apply unless-

(a) the cheque has been presented
to the bank within a period of six months
from the date on which it is drawn or
within the period of its validity, whichever
is earlier;

(b) the payee or the holder in due
course of the cheque, as the case may be,
makes 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

(c) the drawer of such cheque
fails to make the payment of the said
amount of money to the payee or, as the
case may be, to the holder in due course of
the cheque, within fifteen days of the
receipt of the said notice.

Explanation.-- For the purposes
of this section, "debt or other liability"
means a legally enforceable debt or other
liability.]

Clause (b) of the aforesaid
Section 138 of N.I. Act requires that the
payee or the holder in due course of a
cheque, has 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 30 days of the receipt of
the information from the bank regarding
the return of the cheque as unpaid.

8. A supplementary affidavit has been
filed by the applicant which is taken on
record which contains several documents
filed by complainant in support of the
complaint which also include two return
memorandum
of
the
bank
dated
29.12.2015. Thereafter within 30 days i.e.
on 11.01.2016 a notice has been given by
the complainant to the accused-applicant
through his counsel. Specific averment of
4 All. Anwar Saifi Vs. State of U.P.& Anr.
87
giving notice has been made in the
complaint to the effect that the complainant
has given a notice dated 11.01.2016
through his counsel to the accusedapplicant which has been received by the
accused and has not given any reply. The
mandatory requirement under 138 clause-b
of N.I. Act is only that the complainant or
the payee or holder of cheque has to make a
demand for payment of the said amount of
money by giving a notice in writing within
30 days of the receipt of information
received by him from the bank.

9. In this case, the bank has
dishonored
both
the
cheques
on
29.12.2015, return memo of the bank are
on record. The notice has been given well
within 30 days from 29.12.2015. The
submission of learned counsel for the
applicant is that there is no specific
averment in the complaint regarding the
date of service to the accused-applicant of
the legal notice sent by the complainant,
therefore, the entire proceedings are liable
to be quashed.

10. The second contention is that even
if the legal notice dated 11.01.2016 is
accepted as served then also the complaint
impugned has been filed on 09.02.2016
before the stage of maturity. The contention
of the learned counsel for the applicant
seems to be misconceived. There is no
requirement under Section 138 to disclose
the date of service in the complaint,
however, the only requirement is that a
demand for payment of the said amount of
money has to be made by the payee or
holder in due course of the cheque 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. In
this case, that requirement has been
complied by the complainant. There is
categorical averment in the complaint that a
legal notice has been given to the accusedapplicant by the complainant through his
counsel. The notice has been given within
thirty days of the receipt of the information
by the bank.

11. Along with the supplementary
affidavit, the applicant has filed all the nine
documents filed by the complainant along
with
the
complaint.
Among
those
documents, are two cheques as well as the
registered AD by which the legal notice
was sent. He has also filed the registered
acknowledgment receipt which shows that
the the registered post sent to the address of
the accused-applicant has been received at
his resident. Copy of the registered AD is
also on record.

12. Learned counsel for the applicant
has relied on the judgment of the SC in the
case of "M.S. Shakti Travel and Tours Vs.
State of Bihar, reported in 2022 (9) SCC
415".

13. A perusal of the aforesaid
judgment shows in that case, in the
complaint itself was not mentioned that the
notice has been served, whereas in this case
it is clearly mentioned in the complaint that
the notice was given and it has been duly
served. Therefore, the facts of the case of
M.S. Shakti Travel and Tour (supra) are
different from the present case. The of M.
S. Shakti Travels and Tours (supra) is
distinguishable on the facts.

14. In the present case, a demand has
been made by the complainant by giving a
legal notice through his counsel which has
been sent by the registered post along with
the acknowledgment due and as he
received the acknowledgment due. The
argument advanced by the learned counsel
88 INDIAN LAW REPORTS ALLAHABAD SERIES
for the applicant that there should be
specific averment disclosing the date of
service in the complaint in question, is
misconceived.

15. The controversy has been settled
by the Apex Court in the case of "(2007) 6
SCC 555, C.C. Alavi Haji Vs. Palapetty
Muhammed and another" and it has been
held that there is no need to make such
averment in the complaint for raising
presumption as to service of notice in the
said situation and in view of Section 27 of
General Clauses Act, 1987 and Section 114
of Evidence Act, 1872, once the notice is
sent by the registered post by correctly
addressing the drawer of cheque, the
service of notice deemed to have been
effected.

14. Section 27 gives rise to a
presumption that service of notice has been
effected when it is sent to the correct
address by registered post. In view of the
said presumption, when stating that a
notice has been sent by registered post to
the address of the drawer, it is unnecessary
to further 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. This
Court has already held that when a notice
is sent by registered post and is returned
with a postal endorsement "refused" or
"not available in the house" or "house
locked" or "shop closed" or "addressee not
in station", due service has to be presumed.
(Vide Jagdish Singh v. Natthu Singh
[(1992) 1 SCC 647 : AIR 1992 SC 1604] ;
State of M.P. v. Hiralal [(1996) 7 SCC 523]
and V. Raja Kumari v. P. Subbarama Naidu
[(2004) 8 SCC 774 : 2005 SCC (Cri) 393]
.) It is, therefore, manifest that in view of
the presumption available under Section 27
of the Act, it is not necessary to aver in the
complaint under Section 138 of the Act that
service of notice was evaded by the accused
or that the accused had a role to play in the
return of the notice unserved.

15. Insofar as the question of
disclosure of necessary particulars with
regard to the issue of notice in terms of
proviso (b) of Section 138 of the Act, in
order to enable the court to draw
presumption or inference either under
Section 27 of the GC Act or Section 114 of
the Evidence Act, is concerned, there is no
material
difference
between
the
two
provisions. In our opinion, therefore, when
the notice is sent by registered post by
correctly addressing the drawer of the
cheque, the mandatory requirement of issue
of notice in terms of Clause (b) of proviso
to Section 138 of the Act stands complied
with. It is needless to emphasise that the
complaint
must
contain
basic
facts
regarding the mode and manner of the
issuance of notice to the drawer of the
cheque. It is well settled that at the time of
taking cognizance of the complaint under
Section 138 of the Act, the court is required
to be prima facie satisfied that a case under
the said section is made out and the
aforenoted mandatory statutory procedural
requirements have been complied with. It is
then
for
the
drawer
to
rebut
the
presumption about the service of notice and
show that he had no knowledge that the
notice was brought to his address or that
the address mentioned on the cover was
incorrect or that the letter was never
tendered or that the report of the postman
was incorrect. In our opinion, this
interpretation of the provision would
effectuate the object and purpose for which
4 All. Anwar Saifi Vs. State of U.P.& Anr.
89
proviso to Section 138 was enacted,
namely, to avoid unnecessary hardship to
an honest drawer of a cheque and to
provide him an opportunity to make
amends.

16. In the aforesaid case of C.C. Alavi
Haji (supra), the averments made in
complaint that the complainant issued
lawyer's notice intimating dishonor of
cheque
and
demanded
payment
on
04.08.2001, the same was returned on
10.08.2001 saying that the accused was out
of station. There was no averment to the
effect that the notice was sent at the correct
address of the drawer or the cheque by
"registered post acknowledgment due".
However, since the returned envelope was
annexed to the complaint which formed a
part of the complaint which showed that
notice
was
sent
by
registered
post
acknowledgment due to the correct address
and was returned with an endorsement that
"the adressee was in abroad". It was held
by the Apex Court that requirement of
Section 138 of N.I. Act have been
sufficiently complied. Likewise in this
case, the complainant has issued lawyers
notice on 11.01.2016, intimating the
dishonor of cheque and a demand of
payment was made by that notice which
was sent by registered post at the correct
address of the drawer, the registered receipt
is on record and acknowledgment from the
receiver on piece of paper by one Jeenat on
behalf of the complainant is on record
which confirms that the notice was
properly
served.
That
signed
document/receipt has been delivered to the
complainant/sender which is filed along
with
the
supplementary
affidavit.
Therefore, it cannot be said that legal
notice sent to the applicant-accused has not
been served. The registered receipt as well
as registered AD have been filed as
evidence along with the complaint which
form part of the complaint.

17. In this case, clear avement has
been made in the complaint that a legal
notice demanding the money has been sent
through his lawyer's by the complainant to
the applicant-accused. The registry receipt
as well as the registered AD have been filed
along with the complaint which forms part
of the complaint, therefore it is unnecessary
that specific date of service of legal notice
to the applicant accused should have been
mentioned. Law in this regard has been
settled by the Apex Court in the aforesaid
case of C.C. Alavi Haji (supra).

18. So far as the second limb of
argument that the complaint is premature is
concerned, it is evident that legal notice
through registered post was sent by the
complainant to the applicant-accused who
are resident of the same district, therefore,
in view of Section 27 of General Clauses Act,
1987 and Section 114 of the Evidence Act,
1872 once the notice is sent by the registered
post by correctly addressing the drawer of the
cheque, the service of notice is deemed to
have been effected. As per Section 142(1)
N.I. Act, complaint under the said Act is to be
made within one month of the date on which
the cause of action arises under clause (c) of
the Proviso to Section 138 of N.I. Act. The
notice was sent on 11.01.2016 on a local
address by the registered post, hence, the
service of notice is deemed to have been
effected. The drawer of the cheque of the
accused-applicant was supposed to make a
payment of the said amount within 15 days of
the receipt of such notice, which he has failed
to pay. The complaint has been filed on
09.02.2018.

19. In this case the notice was sent on
11.01.2016 which shall be deemed to have
90 INDIAN LAW REPORTS ALLAHABAD SERIES
been served on seven days on local address
as it was sent through registered post. The
drawer of the cheque/applicant-accused
was supposed to make the payment of the
said amount of money to the payee within
15 days of the receipt of notice, therefore,
after expiry of 15 days within one month,
the complaint could have been filed which
has been done in this case. There is no
substance in the argument of learned
counsel for the applicant.

20. Even otherwise the applicant
accused has filed the summons of learned
trial court he has also filed the copy of the
complaint as well as the other documents
annexed with the complaint, therefore, it
will be presumed that he has received the
summons from the learned trial court along
with the copy of the complaint under
Section 138 of N.I. Act and therefore
cannot contend that there was no proper
service of notice as required under Section
138 of N.I. Act as held by the Apex Court
in the aforesaid case of C.C. Alavi Haji
(supra). Relevant para no. 17 is extracted.

17. It is also to be borne in mind
that the requirement of giving of notice is a
clear departure from the rule of criminal
law, where there is no stipulation of giving
of a notice before filing a complaint. Any
drawer who claims that he did not receive
the notice sent by post, can, within 15 days
of receipt of summons from the court in
respect of the complaint under Section 138
of the Act, make payment of the cheque
amount and submit to the court that he had
made payment within 15 days of receipt of
summons (by receiving a copy of complaint
with the summons) and, therefore, the
complaint is liable to be rejected. A person
who does not pay within 15 days of receipt
of the summons from the court along with
the copy of the complaint under Section
138 of the Act, cannot obviously contend
that there was no proper service of notice
as required under Section 138, by ignoring
statutory presumption to the contrary under
Section 27 of the GC Act and Section 114 of
the Evidence Act. In our view, any other
interpretation of the proviso would defeat
the very object of the legislation. As
observed in Bhaskaran case [(1999) 7 SCC
510 : 1999 SCC (Cri) 1284] if the "giving
of notice" in the context of Clause (b) of the
proviso was the same as the "receipt of
notice" a trickster cheque drawer would get
the premium to avoid receiving the notice
by adopting different strategies and escape
from legal consequences of Section 138 of
the Act.

21.
In
view
of
the
aforesaid
discussions and the law laid down by the
Apex Court, the petition fails and is
accordingly dismissed.
----------
(2023) 4 ILRA 90
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.02.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Misc. Application U/S 482 No. 28701 of
2022

Vijay ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Sunil Kumar Yadav

Counsel for the Opposite Parties:
G.A., Sri Umesh Kumar

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent