# Man Singh v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 74
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-20
- **Case number:** Criminal Misc. Application U/S 482 No. 11914 of 2022
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/man-singh-v-state-of-u-p-anr-50013
- **Pages:** 6

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - The Negotiable instruments Act,
1981 - Section 138 , Proviso (c) of Section
138 N.I. Act - pre-condition for invoking
Section 138 by giving a notice to the
drawer of the cheque - before filing a
complaint under Section 138 of the Act
which is a mandatory requirement - Once
it is stated in the complaint that notice
has been sent by the registered post to
the address of the drawer, the due service
has to be presumed in view of Section 27
of the General Clauses Act read with
Section 114 of the Evidence Act - at the
time of taking cognizance of the complaint
under Section 138 of the Act, the Court is
to only prima facie satisfy that a case
under said section is made out and the
mandatory
requirement
have
been
complied with.(Para 10,11)

(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 10)
(C) 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 .(Para 10)

Cheque issued by accused - to discharge a legal
debt - returned unpaid - dishonoured - evaded
legal notice send through registered post -
complainant filed a complaint - held by trial
court - while passing impugned order - notice
dated 07.07.2018 and 27.07.2018 will be
deemed to have been issued within 30 days of
dishonour of cheque in dispute. (Para -3,12)

HELD:-No infirmity in the impugned order
passed by trial court.(Para - 13)

Petition dismissed. (E-7)

List of Cases cited:

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

## Text

74 INDIAN LAW REPORTS ALLAHABAD SERIES

10. In the result, this application fails
and consequently, stands rejected.
----------
(2023) 4 ILRA 74
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.02.2023
BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Misc. Application U/S 482 No. 11914 of
2022

Man Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Shiv Sagar Singh

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - The Negotiable instruments Act,
1981 - Section 138 , Proviso (c) of Section
138 N.I. Act - pre-condition for invoking
Section 138 by giving a notice to the
drawer of the cheque - before filing a
complaint under Section 138 of the Act
which is a mandatory requirement - Once
it is stated in the complaint that notice
has been sent by the registered post to
the address of the drawer, the due service
has to be presumed in view of Section 27
of the General Clauses Act read with
Section 114 of the Evidence Act - at the
time of taking cognizance of the complaint
under Section 138 of the Act, the Court is
to only prima facie satisfy that a case
under said section is made out and the
mandatory
requirement
have
been
complied with.(Para 10,11)

(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 10)
(C) 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 .(Para 10)

Cheque issued by accused - to discharge a legal
debt - returned unpaid - dishonoured - evaded
legal notice send through registered post -
complainant filed a complaint - held by trial
court - while passing impugned order - notice
dated 07.07.2018 and 27.07.2018 will be
deemed to have been issued within 30 days of
dishonour of cheque in dispute. (Para -3,12)

HELD:-No infirmity in the impugned order
passed by trial court.(Para - 13)

Petition dismissed. (E-7)

List of Cases cited:

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

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

1. Heard Shri Shiv Sagar Singh
learned counsel for the petitioner as well as
learned A.G.A. for the State.

2. Notices to respondent no. 2 are
dispensed with.

3. Through this petition, the petitioner
has challenged the impugned order dated
11.10.2021 passed by the Presiding Officer,
Additional Court, Saharanpur in complaint
case No. 877 of 2018 (Praveen Singh Vs.
Man Singh), under Section 138 of N.I. Act,
P.S. Sadar Bazar, District Saharanpur
whereby the petitioner has been summoned
for facing trail for an offence under Section
138 N.I. Act with regard to dishonor of
alleged cheque dated 28.03.2018.
4 All. Man Singh Vs. State of U.P.& Anr.
75

4. Brief facts of the case are that in
order to discharge a legal recoverable debt
or liability a cheque No. 004565 dated
28.03.2018 to the tune of Rs. 1,00,000/-
was issued in favour of the complainant by
the accused, the cheque was presented by
the complainant in his bank account No.
3463556822, Central Bank of India,
Naveen Nagar, Saharanpur for encashment.
The cheque was returned back unpaid with
an endorsement of the bank that payment
stopped by the drawer. Again the cheque
was presented by the complainant in his
bank for encashment in his account,
however, the same was again dishonoured
on
25.06.2018
and
the
information
regarding dishonouring of cheque was
received by the complainant on 28.06.2018.
The payment was again stopped by the
drawer as per memo of the bank. The
complainant thus issued a legal notice
dated 07.07.2018 to the accused on his
residential address through registered post
which was evaded by the accused in
collusion with the postal employees by
mentioning
an
endorsement
that
the
accused does not reside on this address.
The second notice was sent by the
complainant
on
27.07.2018
through
registered post which was also returned by
the accused and was received by the
complainant on 01.08.2018 and then on
20.08.2018, a complaint was filed by the
complaint before the learned court below.

5. Earlier in the case under Section 138
of N.I. Act, vide order dated 17.1.2019, the
learned trial court summoned the accused.
Against that order, the accused filed a
criminal revision No. 143/2019 "Man Singh
Vs. State of U.P" which was allowed vide
order dated 19.10.2019 by the learned
Additional Sessions Judge, Court No. 6,
Saharanpur and the order dated 17.01.2019
was set aside. The relevant part of the order
passed by the Revisional Court is extracted
below:-

डनगरानीकताि के डवद्वान अडधवक्ता का मुख्य तकि यह
था डक चेक अनादृत होने की मैमो डदनांडकत 26.5.6.2018 की है
तथा कडथत नोडिस डदनांडकत 27.07.2018 को डदया गया है। इस
प्रकार उक्त नोडिस 30 डदन के अन्दर नहीं डदया गया है। आक्षेडपत
आदेश डदनांडकत 17.01.2019 के अवलोकन से स्पष्ट है डक उसमें
डवद्वान अवर न्यायालय द्वारा नोडिस डदये जाने की डतडथ / अवडध के
आंकलन करने हेतु अपने आदेश में चैक अनादृत होने की सूचना की
डतडथयां 14.05.2018 व 25.06.2018 दडशित की गयी है। यडद
बाद वाली डतडथ 25.06.2018 से डदनों की गणना की जाये तो जो
नोडिस डदनांक 27.07.2018 को प्रेडषत डकया गया वह 30डदन के
बाद का है। डवद्वान अवर न्यायालय द्वारा इस सम्बन्ध में अपने आदेश
में कोई डववेचना नहीं की गयी है डक 30डदन पश्चात् नोडिस भेजे जाने
पर भी पररवाद डकस कारण से पोषणीय है। इसके अडतररक्त यहााँ यह भी
उल्लेखनीय है डक पररवाद में पररवादी द्वारा चैक अनादृत होने की
सूचना डदनांक 28.06.2018 को प्राप्त होना कडथत डकया है और
इसके बाद एक नोडिस डदनांक 7.7.2018 को भी प्रेडषत डकया जाना
कडथत डकया है। डजसके सम्बन्ध में पत्रावली पर रडजस्री रसीद भी
दाडखल है। उक्त दोनों तथ्यों की भी डववेचना डवद्वान अवर न्यायालय
द्वारा अपने आदेश में नहीं की गयी है, जो इस सम्बन्ध में डनष्कषि
डनकालने में महत्वपूणि हो सकती थी डक वास्तव में पररवादी द्वारा प्रेडषत
नोडिस समय सीमा के अन्दर है या नहीं। इस प्रकार उक्त पररडस्थडतयों में
डवद्वान अवर न्यायालय द्वारा पाररत आदेश पूणितया तथ्यों एवं साक्ष्यों
पर आधाररत नहीं है। डवद्वान अवर न्यायालय द्वारा अपने में डनडहत
क्षेत्राडधकार का पूणितः प्रयोग करने में लोप डकया गया है। अतः उक्त
आदेश यथावत् बने रहने योग्य नहीं है। डनगरानी स्वीकार डकये जाने
योग्य है।

आदेश

प्रस्तुत फौजदारी डनगरानी स्वीकार की जाती है।
डवद्वान अवर न्यायालय द्वारा पाररत आदेश डदनांडकत
17.01.2019 डनरस्त डकया जाता है। डवद्वान अवर न्यायालय को
डनरदेडशत डकया जाता है डक वह उपर की गयी डववेचना के आधार
पर यथोडचत नवीन आदेश पाररत करना सुडनडश्चत करें। पत्रावली
अडग्रम कायिवाही हेतु डवद्वान अवर न्यायालय प्रेडषत की जाये।
पत्रावली डदनांक 13.11.2019 को डवद्वान अवर न्यायालय के
समक्ष पेश हो पररवादी डदनांक 13.11.2019 को डवद्वान अवर
न्यायालय में उपडस्थत हो।

6. On remand, the matter was again
heard for orders on summoning. In
76 INDIAN LAW REPORTS ALLAHABAD SERIES
compliance of the observations made by
the Revisional Court, the learned trial court
has passed the impugned order dated
11.10.2022 summoning the accused. The
relevant extract of the order is extracted
below:-

"In support of the complaint
averments the complainant has filed an
affidavit in which she has reiterated her
complaint's averments. In addition to
aforesaid
preliminary
evidence
the
complainant has also filed on record
following documents---

1 Cheque No. 004565 dated 28-32018 for the sum of Rs. 100,000/ in favour
of the complainant

2 Bank memo dated 14-5-2018
showing cause of dishonour of the cheque
as "payment stopped by drawer.

3. Bank memo dated 25-6-2018
showing cause of dishonour of the cheque
as "payment stopped by drawer".

4. Copy of legal notice bearing
date as 27-7-2018.

5. Registered postal receipt dated
07-7-2018 and

6. Registered postal receipt dated
27-7-2018.

7. Registered postal envelope
issued
against
the
accused
on
his
residential
address
and
returned
undelivered bearing an endorsement of the
postman dated 09-7-2018.

8. Registered postal envelope
issued against the accused on his place of
posting and returned back undelivered
bearing endorsement of the postman dated
01-8-2018.

The complainant not only in her
complaint but even in her affidavit has
specifically mentioned that lastly she had
presented the cheque in dispute for
encashment before her banker but it was
dishonoured once again and she could get
such information on 28-6-2018. The
veracity of this fact can only be ascertained
after the conclusion of evidence. Therefore
notices issued on 07 7-2018 against the
accused on his residential address and then
issued on his place of posting on 27-7-2018
will be deemed to have been issued within
30 days of the receipt of information of
dishonour of cheque in dispute.

Therefore
at
this
stage
the
complainant succeeds in proving all
ingredients of Section 138 of NI Act against
the accused.

So on the basis of the preliminary
evidence of the complainant under Section
200 of Criminal Procedure Code and
aforesaid documents the complainant at
this stage appears to have been successful
in prima facie establishing the necessary
ingredients of Section 138 of NI Act as
under:-

1. The cheque in dispute was
issued by accused in order to discharge his
legally enforceable debt or liability.

2. The cheque was presented for
encashment within its validity period by the
complainant.

3. The cheque was dishonored
due to the reason "payment stopped by the
drawer.

4. After being informed about
dishonor of cheque the complainant within
30 days got issued the legal notice by way
of registered post through his counsel.

5. Despite service of such notice
the accused failed to pay the cheque
amount within 15 days of the receipt of
notice, 6 Thereafter the present complaint
has been filed within time prescribed under
Section 142(1)(b) of the NI Act.

Therefore
at
this
stage
the
complainant
appears
to
have
been.
successful in proving all legal ingredients
of Section 138 of Negotiable Instruments
Act against the accused. So at this stage
4 All. Man Singh Vs. State of U.P.& Anr.
77
prima facie case under Section 138 of NI
Act, against the accused is made out.
Hence it appears reasonable and proper to
summon the accused Maan Singh to face
trial for an offence punishable under
Section 138 of Negotiable Instruments Act

Order

1. Let the accused Maan Singh be
summoned to face trial for an offence
punishable under Section 138 of Negotiable
Instruments Act 1881,for 07-01-2022 fixed
for appearance.

2. Steps for service of summons
be taken within 3 days in following modes:-

(i) By way of ordinary process.

(ii) By way of registered post with
AD.

(iii) By way of courier service.

(iv) By way of e-mail, if possible.

3. Let the copies of the complaint
and list of witnesses be filed within three
days.

4. Compliance report along with
postal and courier service receipts be filed
positively by or before the date fixed."

7. Submission of learned counsel for
the
petitioner
is
that
cheque
was
dishonoured on 26.06.2018 and the alleged
notice
was
given
on
27.07.2018
approximately after 30 days and thus,
notice has not been given within 30 days as
mandated under Negotiable Instrument Act.
He further submits that in the complaint it
has been mentioned by the complainant
that information regarding dishonour of
cheque was given on 28.06.2018 and
subsequently a notice dated 07.07.2018 was
sent to the accused. He further submits that
the learned trial court while passing the
summoning order order dated 17.01.2019
has not discussed the fact that as to whether
the notice sent by the complainant was
within time and the complaint can be
maintainable after 30 days and therefore,
the learned revisional Court on these
grounds has remanded the matter to the
learned trial court vide its order dated
19.10.2019.

8. Perusal of the record shows that
cheque No. 004565 dated 28.03.2018 for a
sum of Rs. 1,00,000/- issued in favour of
the complainant was dishonoured on
14.05.2018 as per the bank memo filed
with the complainant as payment was
stopped by the drawer. Again when the
cheque was presented second time in the
bank it was again dishonoured showing the
cause as payment was stopped by the
drawer. As per the averment made in para 7
of the complaint, information regarding
such dishonour of cheque was received by
the
complainant
on
28.06.2018
and
consequently registered legal notice dated
07.07.2018 was sent on the address of the
accused. The postal receipt of the notice
dated 07.07.2018 is on record. Thereafter
again a notice was sent dated 27.07.2018
along with postal receipt which is also on
record. Both the envelopes issued with
legal notice on the address of the accused
returned back not delivered with an
endorsement
of
the
postman
dated
09.07.2018
and
01.08.2018.
The
complainant in para 6 of her complaint has
categorically pleaded that she received
information regarding dishonour of cheque
on 28.06.2018 regarding that a registered
notice was sent on 07.07.2018 on his
correct residential address. Again a second
legal notice was sent on 27.07.2018 on his
official address. Both notices were returned
with the endorsement.

9. Proviso (c) of Section 138 N.I. Act
being a pre-condition for invoking Section
138 by giving a notice to the drawer of the
cheque before filing a complaint under
Section 138 of the Act which is a
78 INDIAN LAW REPORTS ALLAHABAD SERIES
mandatory requirement appears to have
been fulfilled by the complainant in this
case. The argument of the petitioner that no
notice dated 07.07.2018 has been given to
him and only notice dated 27.07.2018 has
been given after 30 days of the date of
dishonour of cheque was the second time
i.e. on 25.06.2018 is misconceived for the
reason that in the complaint the bank memo
dated 25.06.2018 showing the dishonour of
the cheque is annexed, coupled with the
categorical pleading of the complainant in
para 7 of the complaint and it has also been
pleaded that on 07.07.2018 the registered
notice on the residential address of the
accused was sent which was returned with
an endorsement and thereafter again a
registered notice dated 27.07.2018 was sent
on the official address of the accused which
was again returned with endorsement and
was received on 01.08.2018, hence, the
notice issued on 07.07.2018 as well as
27.07.2018 were deemed to have been
issued within thirty days of the receipt of
the information of dishonour of cheque in
question.

10. At the stage of taking cognizance
only prima facie case has to be seen. The
basic facts regarding mode and manner of
issuance of the notice to the drawer of the
cheque
have been narrated
in
the
complaint. Once it is stated in the
complaint that notice has been sent by the
registered post to the address of the
drawer, the due service has to be
presumed in view of Section 27 of the
General Clauses Act read with Section
114 of the Evidence Act.

No further averment at this stage is
required as per the judgment of the Apex
Court passed in the case of "C.C. Alavi
Haji
Vs.
Palapetty
Muhammed
and
Another" reported in "(2007) 6 SCC 555".
The relevant para 14 and 15 of the said
judgment are extracted below:-

"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 "14. Section 27 gives rise to a
presumption that service of notice has been
effected when it is sent to the co 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
4 All. Janki Sharan Trivedi @ Aman & Ors. Vs. State of U.P.& Anr.
79
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
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."

11. The purpose of notice is to give an
opportunity to the drawer to pay the cheque
amount within 15 days from the date of the
receipt of notice so as to free from
prosecution
under
Section
138
of
Negotiable Instrument Act. Law in this
regard has been settled by the Apex Court
that at the time of taking cognizance of the
complaint under Section 138 of the Act, the
Court is to only prima facie satisfy that a
case under said section is made out and the
mandatory
requirement
have
been
complied with. The drawer will be having
opportunity to rebut the said presumption
about the service of notice at the
appropriate stage of the trial.

12. Perusing this fact, learned trial
court while passing the impugned order has
held that notice dated 07.07.2018 and
27.07.2018 will be deemed to have been
issued within 30 days of dishonour of
cheque in dispute.

13. There is no infirmity in the
impugned order passed by the learned trial
court. The petition lacks merits and is
accordingly dismissed.

Office is directed to present this order
to learned trial court.
----------
(2023) 4 ILRA 79
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Misc. Application U/S 482 No. 13185 of
2019

Janki Sharan Trivedi @ Aman & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Birendra Singh, Sri Harikant Shukla, Sri
Virendra Singh

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - Section
420, Dowry prohibition Act,1961 - Section
3/4 - false implication by way of general