# Deepak Kumar and another v. State of D.P. & another

- **Citation:** (2007) 1 ILRA 83
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-09-06
- **Case number:** Criminal Misc. Application No. 7056 of 2005
- **Bench:** Vinod Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-kumar-and-another-v-state-of-d-p-another-40888
- **Pages:** 7

## Headnote

Code of Criminal Procedure Section 482read with General Clauses Act-S.-27Quashing of summoning order-offence
under
Section
138
of
Negotiable
Instrument
Act-Notice
send
through
courier service-held-No authenticity-No
offence
made
out-summoning
order
liable to Quashed.

Held: Para 10
84 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Consequent1y, 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 pn2vision 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.

## Text

1 All] Deepak Kumar and another V. State of U.P. and another
83
investigation the name of accused Rahul
and Anoop's father constable Vijay Singh
and Shyam Singh, who were posted in
district Etah, were pressurising the family
of the deceased;
(vi) That there is no independent
witness to support the prosecution story
and the applicant is innocent, he has not
committed the alleged offence, he is in
jail since 21.4.2006, therefore he may be
released on bail.

5. In reply of the above contentions,
it is submitted by the learned A.G.A. that
it is very serious offence in which the
deceased was arrested by the police and
he was taken to the court for getting the
remand but he has been murdered by the
applicant and other co-accused, the F.I.R.
has been promptly lodged without any
delay and the role of firing is assigned to
the applicant also and deceased had
received gun shot wound of entries and
the alleged occurrence has been witnessed
by so many persons. The applicant has
been named in the F.1. R., he was taken
by the first informant for getting the
remand, therefore his identification was
not disputed. The application of the
applicant seeking his identification has
been rightly rejected by the learned
C.J.M., Etah and the alleged occurrence
has taken place in a broad day light inside
the city, it is grave in nature. In case the
deceased had been murdered in the police
custody and the applicant is released on
bail, he shall tamper with the evidence,
therefore he is entitled to be released on
bail

6. Considering the seriousness of the
allegations made against the applicant and
other co-accused persons and they have
committed the murder of the deceased in
police custody in broad day light in the
heart of the city and the F.I.R. has been
promptly lodged, the role of firing is
assigned to the applicant also and the
deceased had received injuries, the
incident had been witnessed by so many
persons and considering the submissions
made by both the sides and without
expressing any opinion on the merits of
the case, the applicant is not entitled for
bail. Therefore the prayer for bail is
refused.

7. Accordingly, this application is
dismissed.

Application Rejected.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.09.2006

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Misc. Application No. 7056 of
2005

Deepak Kumar and another ...Applicants
Versus
State of D.P. & another...Opposite Party

Counsel for the Applicants:
Sri Manu Yadav
Sri I.M. Khan

Counsel for the Opposite Parties:
Sri Nitin Gupta
A.G.A.

Code of Criminal Procedure Section 482read with General Clauses Act-S.-27Quashing of summoning order-offence
under
Section
138
of
Negotiable
Instrument
Act-Notice
send
through
courier service-held-No authenticity-No
offence
made
out-summoning
order
liable to Quashed.

Held: Para 10
84 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Consequent1y, 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 pn2vision 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.

(Delivered by Hon'ble Vinod Prasad. J.)

1. A couple, Deepak Kumar and Smt.
Nirmala, have invoked the jurisdiction of
this
court
under
section
482
Cr.P.C.(herein in . after referred to as the
Code) and have preferred this criminal
Misc. Application No. 7056 of 2005, with
the prayer to quash the summoning order
dated 16.9.04, by which the learned
Special
Judicial
Magistrate
(C.B.I.)
Ghaziabad has summoned them for
committing offence under section 138 of
the Negotiable Instrument Act, (herein
after referred to as the Act) in complaint
case no. 7136 of 2004, Rajbir Singh Vs.
Deepak Kumar & others. The ancillary
prayer is for stay of the proceeding of the
aforesaid complaint case pendent Lite.

2. The encapsulated facts of the
case, as is perceptible from the complaint
(Annexure no. 4), filed by complainant
Rajbir Singh respondent no.2 are that the
complainant is an employee of Air Force
and Kishan Lal, father of the applicant no.
1 Deepak Kumar, was his neighbour and
was serving as a civil defence personnel.
Applicant no.2 Smt. Nirmala is the wife
of Deepak Kumar. Being neighbour and
persons connected with defense a close
friendship
and
intimacy
developed
between
the
applicants
and
the
complainant. As a result of the said
intimacy between the two, 'the applicants
took a loan of Rupees 1 lac from the
complainant Rajbir Singh, respondent
no.2 on 12.4.04 with a promise to repay it
within six months. A receipt cum
agreement annexure no. 1, was executed
on a stamp paper to this effect on 12.4.04
itself. A cheque, dated 10.7.04, being
cheque no. 087411 from Account No.116,
of Punjab and Sindh Bank, Sector 19
NOIDA, was also issued by the applicants
as a guarantee on the said loan, on the
condition that if, the loan amount was not
paid within the stipulated period of time
then the complainant was free to realise
the loan amount by presenting the said
cheque in the bank for encashment. As the
applicants failed to repay the loan amount
within
the
stipulated
period
the
complainant, left with no other option to
realize his money, deposited the said
cheque for encashment on 13.7.2004 in
his Syndicate Bank, Air Force Station,
Hindon, Ghaziabad branch. Syndicate
Bank returned the said cheque, bounced
and dishonoured to the complainant,
alongwith a memo dated 15.7.04, which
were received to him on 16.7.04. The
memo indicated that the cheque had
bounced because of "funds insufficient".
The complainant, thereafter, made several
requests to the applicant accused for
payment of his loan amount but it was all
in vain. Consequently, the complainant
gave a legal notice, on 26.7.04 under
Section 138 of N.I. Act (annexure no. 2)
to the applicants accused through his
counsel Sri Jai Singh Bhadoria, Advocate.
It was sent through courier service DTDC
vide annexure no.3. Inspite of service of
notice, since, the applicants did not pay
the demanded amount of cheque, the
complainant, respondent no.2 filed a
complaint in the court of Special C.J.M.
(C.B.I.) Ghaziabad on 30.8.04 being
complaint case number 7136 of 2004
1 All] Deepak Kumar and another V. State of U.P. and another
85
under section 138 of the N.I. Act against
the applicants accused; Along with the
complaint he filed photocopies of the
agreement, original copy of the cheque
issued by applicants,' copy of notice and
four courier receipts. The trial court took
cognizance of the offence, recorded the
statement of the complainant under
section 200 Cr.P.C. on 13.8.04, (annexure
no. 5) and thereafter, vide order-16.9.04
summoned the accused applicants for
offence under Section 138 of the N.I. Act
vide annexure no.6. Aggrieved by their
summoning order the present Criminal
Miscellaneous Application has been filed
by the accused applicants with the prayer
to
quash
the
same.
Complainant
respondent no. 2 has filed a counter
affidavit in this application.

3. I have heard Sri Manu Yadav,
advocate,
learned
counsel
for
the
applicants, Sri Nitin Gupta, learned
counsel for the complainant respondent
no.2 and the learned A.G.A. in opposition
at a great length and have gone through
the record of the case. As agreed between
the contesting parties this application is
being finally heard and is being disposed
off at the admission stage itself by this
order.

4. Learned counsel for the applicant
submitted that no offence is made out
against the applicants as it is. not
mentioned in the complaint and in
statement under section 200 Cr.P.C. as to
on what date the notice/notices alleged to
have been sent through DTDC courier
service was served on the applicants. He
further contended that it is not clear from
the complaint as to whether a joint notice
or a single notice was sent under Section
138 of the N.I. Act by the complainant to
the two applicants and who had received
the said notice/notices. Therefore, he
submitted that no offence is made out
against the applicants as it is not known as
to on what date, the offence is made out in
absence of the date of service of notice on
the applicants. He also submitted that
once the notice has been sent by a private
courier there can not be any presumption
under section 114 of Evidence Act read
with section 27 of The General Clauses
Act of service of notice on the applicants.
He further contended that, the complaint
was pre mature and, therefore also, no
offence
is·
made
out
against
the
applicants. He further contended that the
present complaint has been filed with
malicious intention only for the purpose
of harassment.

5.

Learned
counsel
for
the
respondent no.2 along with learned AGA,
contrarily, contended that the notice were
served
on
the
applicants
and
the
complaint is not pre mature as fifteen
days had lapsed before the complaint was
filed in the court. They further argued that
if, the notice is sent by courier service
then the service on the applicants must be
presumed as the notice had not been
received back by the complaint. They
further argued that since the contentions
raised at the bar by the applicants are
factual and relates with the merit of the
case therefore the prosecution must be
allowed to proceed and it can not be nip
into the bud at this stage.

6.

Cogitating
over
the
rival
submissions canvassed at the bar and for a
proper appreciation of the same, the
ingredients for making out an offence
under Section 138 of N.I. Act is to be
brought forth. Section 138 of N.I. Act
provides:-
86 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
"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 he deemed to have
committed an offence and shall, without
prejudice to any other provision 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.

7. Thus, for making out an offence
under section 138 of the Act following
ingredients are essential. In seriatim, they
are registered here as: (i) that a person
must have an operative account in any
bank (ii) 'he owns some debt or liability to
any other person whether juristic/legal, or
not (iii) a cheque is issued in the name of
that person, to whom the debt or liability
is owned by the account holder, from his
such operative account in the bank, for
the satisfaction of, whole or part payment,
for the said debt or liability. (Such person
who issues the cheque is called "drawer"
of the cheque and the person in whose
name the cheque is issued is called the
"drawee" of the cheque.) (iv) the said
cheque is presented by the person in
whose name it is issued (drawee)or the
holder of the cheque, in the bank for it's
encashment with the period of it's validity
or within six months of the date of it's
issuance noted on the cheque (v) the bank
had returned the said cheque unpaid or
dishonoured or uncashed because of
'insufficiency of funds', with what ever
terminology used by the bank for the said
dishonour because of insufficiency of
funds in the account from which the
cheque had been issued by the drawer (vi)
the person in whose name the cheque was
issued (drawee) or holder in due course
of the said cheque gives a notice, in
writing, to the person who has issued the
cheque (drawer)with a period of thirty
days, from the date of receipt of the notice
of dishonoured/ unpaid cheque from the
bank, demanding the payment of the
amount of cheque, with or without other
prayers for damages or interest thereon
(vii) the notice of demand is served on the
1 All] Deepak Kumar and another V. State of U.P. and another
87
person who had issued the cheque
(drawer) (viii) the drawer does not make
the payment to the payee or drawee
within fifteen days of the receipt of the
said notice on him and the amount of
cheque remains unpaid (ix) the complaint
is laid in court within one month, after
expiry of period of fifteen days from the
date
of
service of notice
on the
drawer/payer (emphasis supplied). These
requirements listed above are sine qua
non for making out an offence under
section 138 of the Act. In the event of
absence of any of the above mentioned,
necessary requirements, the offence under
section 138 of the N.!. Act is not made
out. Thus, for making out an offence
under 138 N.I. Act, four dates are very
relevant to be mentioned in the complaint
or at least they should be clear from the
papers filed along with the filing of the
complaint itself. These dates are (i) date
mentioned on the cheque (ii) date of it's
deposit in the bank for encashment (For
knowing it's period of validity), the date
on which the notice/memo advice from the
bank was received by the drawee/payee or
holder of the cheque regarding it's
bouncing because of insufficiency of funds
by using any phraseology for the same
(for determining the period of notice,
which is one month, from such a date), the
date of notice given bv the drawee/ payee
to the drawer/payer of the cheque ( to
determine fifteenth day so as to bring
"cause of action " to life, in case the
cheque money is not paid during this
period), the date on which the said notice
is received or served to the drawer/payer
of the cheuue (to determine the date on
which the offence is made out, in case the
cheque money is not paid with fifteen days
of the service of the notice) and lastly, the
date of filing of the complaint (for
determining the jurisdiction of the court
to entertain the complaint within the
prescribed period of limitation and
complaint not being time barred). If, these
dates are not perceptible from the
complaint or papers accompanying it then
the Magistrate has no jurisdiction to
entertain the complaint for offence under
Section 138 N.I. Act (emphasis supplied.)

8. Now the case of the complainant
is to be judged in view of rival
contentions raised at the bar and pleadings
made herein in the application and
counter affidavit on the above ingredients
for making out offence under Section 138
N.I. Act.

9.

Pondering
over
the
rival
contentions, I find that there is substance
III 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
re-payment 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
can not 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 also can not be accepted
because section 27 of General Clauses
88 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
does not takes into it's purview service by
private courier. For a proper under
standing 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 P 0.'-, t, whether the expression
"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 he provided by the
Act itself and secondly, that such "service
shall he 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 out side
the purview of the section 27 of The
General Clauses Act, therefore the courts
can not implant such presumption of
service into that section and rightly so
because private courier services are
privately
run
business
without
any
authenticity of service, (emphasis mine).
Consequent1y, 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 pn2vision 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.

Summing up from the discussions
made above, since, no offence under
Section 138 of N.I. Act is made out
against the applicants, in absence of date
of service of notice of demand on them
their summoning order dated 16.9.04
passed by the Special Judicial Magistrate,
CBI, Ghaziabad, in complaint case
number 7136 of 2004 Rajbir Singh versus
Deepak Kumar and another, under section
138 of Negotiable Instrument Act, cannot
be allowed to stand and has to be quashed
and I order so.

Resultantly,
this
Criminal
Miscellaneous Application is allowed.
The impugned summoning order dated
16.9.04 passed in complaint case no. 7136
of 2004 Rajbir Singh versus Deepak
Kumar and another, under section 138 of
Negotiable Instrument Act 1881, by
Special
Judicial
Magistrate,
CB
I,
Ghaziabad against the applicants is
quashed.

Let a copy of this order be sent to the
trial court for it's intimation and further
action as it's intimation and further action
as it's end.
 Application Allowed.
---------
1 All] Ramveer Singh and others V. Gail India Ltd and others
89
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.09.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Writ Petition No.2140 of 2004

Ramveer Singh and others ...Petitioners
Versus.
Gail India Ltd. and others ...Respondents

Connected with:
1. Writ Petition No.28608 of 2003
2. Writ Petition No.3601 of 2004

Counsel for the Petitioners:
Sri Ashok Khare
Sri V.D. Chauhan
Sri H.N. Singh

Counsel for the Respondents:
Sri Navin Sinha
Sri Siddharth Singh
S.C.

Constitution
of
India,
Art.
226Regularisation-appointment on 'Junior
Foreman
Trainee'
post-under
Govt.
policy-for two years on consolidated
stipend of Rs.4300 plus canteen subsidy
of Rs.400/-further extended for one
year-allowed to continue as trainee for
long time amount unfair labour-practices
no
denied
of
working
as
regular
employee-court can assume and direct
for creation of post and regularizationtill regular absorption minimum scale of
pay to be given.

Held: Para 10 & 12

The Supreme Court in State of Haryana
v. Piyara Singh, (1992) 4 SCC-118 held
that the State should act as a model
employer and should not exploit its
employees nor take advantage of the
helplessness
and
miseries
of
such
persons, who are working for a long
time. In the present case, the petitioners
have
been
allowed to
continue as
trainees for a long time and is therefore
indicative
of
the
fact
that
the
respondents are adopting unfair labour
practice for the simple reason that the
respondents are taking regular work
from the petitioners on a consolidated
amount and are not treating them as
regular workers. The fact that regular
work is being taken from the petitioners
have
not
been
denied
by
the
respondents.
That
fact
that
the
respondents
are
permitting
the
petitioners to work in the establishment
is also indicative of the fact that there is
a need for regular work. Therefore, even
assuming that there are no vacancy in
the regular cadre, nonetheles, there is a
requirement for a regular post and
accordingly, the Court could direct the
respondents
to
create
a
post
and
regularise the services of the petitioners.

In view of the aforesaid, it is clear that
the petitioners are working continuously
from
the
date
of
their
initial
appointments as trainees. The action of
the
respondents
in
permitting
the
petitioners to work for considerable
length of time gave them a flicker of
hope for being absorbed in the services
of the respondents. Clause 12 of the
terms and conditions of the offer of
appointment
indicates
that
the
management
has
a
policy
for
the
absorption of trainees in the regular
cadre.
Case law discussed:
2006 (4) SCC-1 relied on.
1992 (4) SCC-118 relied on.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The land of the petitioners was
acquired under the Land Acquisition Act
for the Gas Authority of India Limited
(GAIL) to set up a project known as "
Uttar Pradesh Petrochemicals Complex".
A lot of hue and cry was raised by the
land owners against the acquisition