# Dhiraj Gupta v. Imran Khan & Anr

- **Citation:** (2022) 2 ILRA 213
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-15
- **Case number:** Application U/S 482 No. 6709 of 2009
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhiraj-gupta-v-imran-khan-anr-47507
- **Pages:** 5

## Headnote

Law-
The
Negotiable
Instruments
Act,
1881-Section
138,
Section 94 -The General Clauses Act, 1897Section 17, Section 27 - Code of Criminal
Procedure, 1973-Section 482- Demand
Notice- receipt of said notice is said to have
not returned to the complainant-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-The
service of notice through registered post
was proper and there was no rebuttal
evidence to show that the complainant had
deliberately and intentionally sent the legal
notice to some wrong address or that the
applicant had resided at some other place.
Furthermore, the applicant must have the
knowledge of the cheque having bounced
from his bank statement also. The receipt
of notice or its service on the applicant is a
matter of fact which can only be seen by
the Trial Court.
214 INDIAN LAW REPORTS ALLAHABAD SERIES
Service of notice would be deemed to be proper
and sufficient where it is sent to the correct
address
and
even
if
the
postal
acknowledgement is returned for some reason,
due service has to be presumed and although
the same may be rebutted but then the
question of receipt of notice would be a matter
of appreciation of evidence which cannot be
appreciated in the exercise of jurisdiction under
section 482 of the Code.

Criminal Application rejected. (E-3) ( Para 11)

Judgements/ Case law relied upon:-

## Text

2 All. Dhiraj Gupta Vs. Imran Khan & Anr.
213

"iv) The power of quashing
should
be
exercised
sparingly
with
circumspection, as it has been observed, in
the rarest of rare case (not to be confused
with the formation in the context of death
penalty).

v)
While
examining
an
FIR/complaint, quashing of which is
sought, the Court cannot embark upon an
enquiry as to the reliability or genuineness
or otherwise of the allegations made in the
FIR/complaint;

vi) Criminal proceedings ought
not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR
should be an exception rather than an
ordinary rule."

10. Following other authorities can be
cited on the aforesaid point: R. P. Kapur vs.
The State Of Punjab, AIR 1960 SC 866,
State of Haryana and others Vs. Ch.
Bhajan Lal and others, AIR 1992 SC 604.

11. Perusal of the record reveals that
an F.I.R. was lodged against the applicants
in Case Crime No. 309 of 2020 under
Sections 498A, 323, 506 I.P.C. and Section
3/4 of POCSO Act. I.O. after collection of
evidence and conclusion of investigation,
submitted charge-sheet in the matter,
thereafter Chief Judicial Magistrate, Jhansi
took
cognizance
on
11.10.2021
and
summoned the applicants to face trial.

12. Whether victim was beaten and
harassed by the applicants; whether there
was demand of dowry or not; whether
husband,
Ashish
solemnized
another
marriage with another lady named Deeksha
are questions of fact which cannot be
adjudicated upon in this proceeding.
Appraisal
of
evidence
is
also
not
permissible in proceedings under Section
482 Cr.P.C.

13. In view of the above, I am of the
considered opinion that this Application
lacks merit and is liable to be dismissed.

14. Accordingly, this application
under Section 482 Cr.P.C. is dismissed.
----------
(2022)02ILR A213
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.12.2021

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Application U/S 482 No. 6709 of 2009

Dhiraj Gupta ...Applicant
Versus
Imran Khan & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Anil Mullick

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

(A)
Criminal
Law-
The
Negotiable
Instruments
Act,
1881-Section
138,
Section 94 -The General Clauses Act, 1897Section 17, Section 27 - Code of Criminal
Procedure, 1973-Section 482- Demand
Notice- receipt of said notice is said to have
not returned to the complainant-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-The
service of notice through registered post
was proper and there was no rebuttal
evidence to show that the complainant had
deliberately and intentionally sent the legal
notice to some wrong address or that the
applicant had resided at some other place.
Furthermore, the applicant must have the
knowledge of the cheque having bounced
from his bank statement also. The receipt
of notice or its service on the applicant is a
matter of fact which can only be seen by
the Trial Court.
214 INDIAN LAW REPORTS ALLAHABAD SERIES
Service of notice would be deemed to be proper
and sufficient where it is sent to the correct
address
and
even
if
the
postal
acknowledgement is returned for some reason,
due service has to be presumed and although
the same may be rebutted but then the
question of receipt of notice would be a matter
of appreciation of evidence which cannot be
appreciated in the exercise of jurisdiction under
section 482 of the Code.

Criminal Application rejected. (E-3) ( Para 11)

Judgements/ Case law relied upon:-

1. Ajeet Seeds Limited Vs K. Gopala Krishnaiah,
AIR 2014 SC 3057

2. St. of Punj. Vs Kasturi Lal & ors, AIR 2005 SC
4135.

3. St. of Har. & ors. Vs Bhajan Lal & ors.1992
Supp.(1) SCC 335

(Delivered by Hon'ble Krishan Pahal, J.)

1. Heard Sri Anil Mullick, learned
counsel for the applicant, learned AGA for
the State-respondent and also perused the
material available on record.

2. By means of the present application
under Section 482 Cr.P.C., the applicant has
invoked inherent jurisdiction of the Court
with a prayer to quash the summoning
order
dated
02.09.2008
passed
by
Additional
Civil
Judge
(Junior
Division)/Judicial Magistrate, Court No.2,
Meerut, in Case No.2126 of 2008, Imran
Khan Vs. Dhiraj Gupta, under Section 138
of Negotiable Instruments Act, Police
Station- Sadar Bazar, District- Meerut.

3. Facts, in brief, giving rise to the
present application are that the complaint
under Section 138 of Negotiable Instruments
Act has been filed by the complainant Imran
Khan wherein it has been alleged that the
applicant
Dhiraj
Gupta
had
borrowed
Rs.60,000/- from the complainant for his
business and issued a post-dated cheque
no.903149 dated 25.02.2008 to the tune of
Rs.60,000/- of Gym Khana Branch, Meerut
of Punjab National Bank. The complainant
had deposited the cheque on 29.02.2008 and
the same was bounced with the remark
"funds insufficient". A demand notice was
sent by registered post to the applicant within
a limitation period of 15 days. The receipt of
said notice is said to have not returned to the
complainant. An affidavit was filed regarding
the statement recorded under Section 200
Cr.P.C. The applicant herein is said to have
not returned the borrowed money even after
sending the notice and the cheque having
bounced.
The
learned
Magistrate
has
summoned the applicant vide order dated
02.09.2008. It has been argued that the
impugned order dated 02.09.2008 has been
passed without application of mind and is a
cryptic order. Learned counsel for the
applicant has vehemently argued that there is
no receipt regarding service of notice sent on
behalf of the complainant/opposite party
no.2.

4. Learned AGA has opposed the
application and stated that the order
impugned passed by the learned Magistrate is
a detailed and speaking order. The order
mentions the crux of the offence, the
statement of the witnesses and the documents
relied thereupon, therefore, the application
deserves to be dismissed.

5. Learned AGA has also contended
that in view of Section 94 of the Negotiable
Instruments Act, 1881, the service of notice
cannot be termed as insufficient.

6. For ready reference, Section 94 of
the Negotiable Instruments Act, 1881 reads
as under:-
2 All. Dhiraj Gupta Vs. Imran Khan & Anr.
215

"Notice of dishonour may be
given to a duly authorized agent of the
person to whom it is required to be given,
or, where he has died, to his legal
representative, or, where he has been
declared an insolvent, to his assignee; may
be oral or written; may, if written, be sent
by post; and may be in any form; but it
must inform the party to whom it is given,
either in express terms or by reasonable
intendment, that the instrument has been
dishonoured, and in what way, and that he
will be held liable thereon; and it must be
given within a reasonable time after
dishonour, at the place of business or (in
case such party has no place of business) at
the residence of the party for whom it is
intended.

If the notice is duly directed and
sent
by
post
and
miscarries,
such
miscarriage does not render the notice
invalid."

6. Section 17 of the General Clauses
Act, 1897, reads as under:-

"Substitution of functionaries

(1) In any [Central Act] or
Regulation made after the commencement
of this Act, it shall be sufficient, for the
purpose of indicating the application of a
law to every person or number of persons
for the time being executing the functions of
an office, to mention the official title of the
officer at present executing the functions,
or that of the officer by whom the functions
are commonly executed.

(2) This section applies also to all
[Central Acts] made after the third day of
January, 1868, and to all Regulations made
on or after the fourteenth January, 1887."

7. In the case of Ajeet Seeds Limited
Vs. K. Gopala Krishnaiah, reported in AIR
2014 SC 3057, Hon'ble the Apex Court has
held in para-9 of sub-para-14 as under:-

"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; State of M.P. v. Hiralal and Ors.,
(1996) 7 SCC 523 and V. Raja Kumari v. P.
Subbarama Naidu and Anr., (2004) 8 SCC
74] 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."

8. The powers under Section 482
Cr.P.C. can be invoked in the matter as
follows:-

i) To give effect to any order
under the Code.

ii) To prevent abuse of the
process of any Court.
216 INDIAN LAW REPORTS ALLAHABAD SERIES

iii) Otherwise to secure the ends
of justice.

9. "Ex debito justitae" to do real and
substantial justice for the administration of
justice alone the Court exists. The aforesaid
law has been settled in AIR 2005 SC 4135
(State of Punjab vs. Kasturi Lal and
others).

10. The inherent powers should not be
exercised
to
stifle
the
legitimate
prosecution and it should not be exercised
at the drop of pen. The present application
does not fall under any of the categories
enumerated under Section 482 Cr.P.C. or
enunciated in the case of State of Haryana
and Others Vs. Bhajan Lal and Others
reported in 1992 Supp.(1) SCC 335 and the
relevant paragraph no.102 of the judgement
is extracted hereunder:-

"102. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated by
this Court in a series of decisions relating
to the exercise of the extra-ordinary power
under Article 226 or the inherent powers
Under Section 482 of the Code which we
have extracted and reproduced above, we
give the following categories of cases by
way of illustration wherein such power
could be exercised either to prevent abuse
of the process of any Court or otherwise to
secure the ends of justice, though it may not
be possible to lay down any precise, clearly
defined and sufficiently channelised and
inflexible guidelines or rigid formulae and
to give an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.

1. Where the allegations made in
the First Information Report or the
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima-facie constitute any offence or
make out a case against the accused.

2. Where the allegations in the
First
Information
Report
and
other
materials, if any, accompanying the F.I.R.
do not disclose a cognizable offence,
justifying an investigation by police officers
Under Section 156(1) of the Code except
under an order of a Magistrate within the
purview of Section 155(2) of the Code.

3. Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of the
same do not disclose the commission of any
offence and make out a case against the
accused.

4. Where, the allegations in the
F.I.R. do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated Under Section
155(2) of the Code.

5. Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of which
no prudent person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused.

6. Where there is an express legal
bar engrafted in any of the provisions of the
Code or the concerned Act (under which a
criminal proceeding is instituted) to the
institution
and
continuance
of
the
proceedings and/or where there is a
specific provision in the Code or the
concerned
Act,
providing
efficacious
redress for the grievance of the aggrieved
party.

7. Where a criminal proceeding is
manifestly attended with mala fide and/or
where
the
proceeding
is
maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
2 All. Mahendra Pal Singh (Lekhpal) & Anr. Vs. State of U.P. & Anr.
217
with a view to spite him due to private and
personal grudge."

11. Considering the submissions
advanced by the learned counsel for the
parties and the judgements referred above
as also perused the material available on
record, this Court is of the considered
opinion that the service of notice through
registered post was proper and there was no
rebuttal
evidence
to
show
that
the
complainant
had
deliberately
and
intentionally sent the legal notice to some
wrong address or that the applicant had
resided at some other place. Furthermore,
the applicant must have the knowledge of
the cheque having bounced from his bank
statement also. The receipt of notice or its
service on the applicant is a matter of fact
which can only be seen by the Trial Court.
The impugned order, therefore, warrants no
interference.

12. The present application is found
devoid of merits and is hereby dismissed.

13. Interim order, if any, stands
vacated.

14. Certify this order to the Lower
Court immediately.
----------
(2022)02ILR A217
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.01.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Application U/S 482 No. 15266 of 2007

Mahendra Pal Singh (Lekhpal) & Anr.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicants:
Sri Sushant Mishra

Counsel for the Opposite Parties:
A.G.A., Smt. Usha Srivastava, Sri V.K.
Srivastava

(A)
Criminal
Law-
Code
of
Criminal
Procedure, 1973- Section 197- Section 482-
Public Servants- Cognizance of offences
without sanction- Applicants are public
servants and further they were discharging
their official duties- The object of sanction
for prosecution whether under Section 197
of the code of criminal procedure is to
protect a public servant discharging official
duties and functions from harassment by
initiation of frivolous criminal proceeding.
The protection is available only when
alleged act done by the public servant is
reasonably connected with the discharge of
his official duty, an offence committed
outside the scope of the duty of the public
servant
would
certainly
not
require
sanction. If in doing official duty public
officer if committed any mistake or has been
summoned in excess of duty even then the
sanction of the Government as provided
under Section 197 of the Criminal Procedure
Code is mandatory. It is well settled that an
application under Section 482 Cr.P.C. is
maintainable to quash the proceedings,
which are ex facie bad for want of sanction.
If, on the face of complaint, the act alleged
appears to have a reasonable relationship
with official duty power under Section 482
Cr.P.C. would have to be exercised to quash
the proceedings to prevent abuse of process
of Court.

It is settled law that where the alleged act by
the public servant has been done in the official
or purported discharge of his official duties,
then
without
obtaining
the
sanction
for
prosecuting him u/s 197 of the Code, no
cognizance of the offences can be taken by the
magistrate and any such criminal proceeding
should be quashed by exercising the powers u/s
482 of the Code.

Criminal Application allowed. (E-3) ( Para
11, 13, 16, 20)