# Prashant Chaudhary v. Ritesh Kumar Singh

- **Citation:** (2023) 11 ILRA 802
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-13
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prashant-chaudhary-v-ritesh-kumar-singh-49414
- **Pages:** 5

## Headnote

Civil Law - Negotiable Instrument Act,
1881-Section138 - complaint clearly St.d that
the notice was sent through a registered post
and that it was never returned to the
complainant- complaint discloses a date of
service of notice- date of the receipt of notice is
very much important - not necessary that any
particular date as regard receipt of demand
notice should mandatorily be mentioned in the
complaint itself.
Petition dismissed. (E-9)

Cases cited:

## Text

802 INDIAN LAW REPORTS ALLAHABAD SERIES
orders whereby detention of the petitioner
has been extended time to time.

(24). The instant Habeas Corpus Writ
Petition is ALLOWED. The petitioner, if
not wanted in any other case, shall be
released
from
custody
forthwith
in
accordance
with
law
after
due
communication of this order to the
authorities concerned.

(25). No orders with regard to cost.
----------
(2023) 11 ILRA 802
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.10.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters Under Article 227 No. 4547 of
2023(Criminal)

Prashant Chaudhary ...Petitioner
Versus
Ritesh Kumar Singh. ...Respondent

Counsel for the Petitioner:
Sri Saroj Kumar Yadav

Counsel for the Respondent:
Sri Gyanendra Prakash Srivastava, Sri
Chandan Kumar Mishra

Civil Law - Negotiable Instrument Act,
1881-Section138 - complaint clearly St.d that
the notice was sent through a registered post
and that it was never returned to the
complainant- complaint discloses a date of
service of notice- date of the receipt of notice is
very much important - not necessary that any
particular date as regard receipt of demand
notice should mandatorily be mentioned in the
complaint itself.
Petition dismissed. (E-9)

Cases cited:
1. C. C. Alavi Haji Vs Palapetty Muhammed,
(2007) 6 SCC 555

2. Dashrathbhai Trikambhai Patel Vs Hitesh
Mahendrabhai Patel & anr.; 2022 (4) Civil Court
Cases 279 (S.C.)

3. Deepak Kumar & anr. Vs St. of U.P. & anr.;
2007 (2) Civil Court Cases 467 (Allahabad)

4. Ajeet Seeds Ltd.Vs K. Gopala Krishnaiah;
(2014) 12 SCC 685

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Saroj Kumar Yadav,
learned counsel for the petitioner, Sri
Chandan Kumar Mishra, Advocate holding
brief for Sri Gyanendra Prakash Srivastava,
learned counsel for the respondent.

2. By means of this petition, the
petitioner has challenged the order dated
10.12.2020 passed by the Court of
Metropolitan Magistrate, Kanpur Nagar in
complaint case no. 82 of 2020 (Ritesh
Kumar Singh vs. Panki Indane Gas Service
through Prashant Chaudhary) filed under
section 138 of the Negotiable Instruments
Act, 1881, whereby the petitioner was
summoned to face trial for an offence under
section 138 of the Negotiable Instruments
Act and also the order dated 20.01.2023
passed in Criminal Revision No. 29 of
2023 (Panki Indane Gas Service through
Prashant Chaudhary vs. Ritesh Kumar
Singh and Another), whereby the order of
the trial court was affirmed.

3. The relevant facts are as below:-

The
respondent-Ritesh Kumar
Singh filed a complaint under section 138
read with section 142 of the Negotiable
Instruments Act, 1881 (hereinafter referred
to as "the N.I. Act"), with the allegation
11 All. Prashant Chaudhary Vs. Ritesh Kumar Singh.
803
that during business transactions between
the two sides, an amount of Rs. 12,50,000/-
became due on him. As part payment
thereof, the opposite party issued a cheque.
The
cheque
was
returned
to
the
complainant without encashment with the
remark that 'Debit not Allowed". The
complainant, therefore, issued a demand
notice within time by registered post. The
opposite party did not repay the amount
within 15 days of its service, therefore, he
filed a complaint.

4. The submission of the petitioner is
that there is nothing to suggest that demand
notice was served on him, therefore, the
essential ingredients for taking cognizance
under section 138 of the N.I. Act were
missing. It is further submitted that the
amount, which fell due on him, was already
paid by him, therefore, the summoning
order is bad in law.

5. I went through the complaint, other
papers which include a copy of the cheque,
a copy of return memo given by the Bank
and a copy of the notice. From the papers
on record, it is revealed that cheque was
dishonored on 07.11.2019. Notice was sent
on 19.11.2019 through registered post and
that no payment was made till 07.11.2019.
The complaint was filed on 03.01.2020.
The learned trial court, on the basis of the
above, passed the order of summoning.

6. I also went through the order of the
revisional court. The contentions which
have been raised before this court were also
raised before the revisional court. The
revisional court dealt with each one of the
objections/contentions
raised
by
the
revisionist and gave findings in para nos. 8,
9, 10 and 11 of the order. Learned
revisional court observed that when a
registered notice has been sent, there shall
be a presumption, unless otherwise shown,
that the notice was served in usual course.
The revisional court referred to the
judgment of Supreme Court in C.C. Alavi
Haji vs. Palapetty Muhammed, (2007) 6
SCC 555.

7. The only point which has been
specifically and vehemently pressed before
this court is that it was nowhere written in
the complaint as to when the notice was
served on the accused. It is further argued
that no evidence has been given to
demonstrate that notice was served on a
particular date. The contention is that
where no particular date of service of
notice has been disclosed, the time period
of 15 days cannot be presumed to run from
some unknown day and therefore the
cognizance could not be taken.

8. The petitioner has referred to a
judgment of the Supreme Court in
Dashrathbhai Trikambhai Patel vs. Hitesh
Mahendrabhai Patel and Another; 2022
(4) Civil Court Cases 279 (S.C.) and a
judgment of Allahabad High Court in
Deepak Kumar and Another vs. State of
U.P. and Another; 2007 (2) Civil Court
Cases 467 (Allahabad). I went through the
judgments. In para no. 7, the High Court
enumerated essentials which should have
been fulfilled before the court could take
cognizance of the offence under section
138 of the N.I. Act. It is argued that in the
event of absence of any of the above
mentioned necessary requirements, the
offence shall not be made out. The relevant
portion of para no. 7 is as below:-

"Thus, for making out an
offence under Section 138, NI 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
804 INDIAN LAW REPORTS ALLAHABAD SERIES
are (I) date mentioned on the cheque; (ii)
date of its deposit in the bank for
encashment (for knowing its period of
validity),
the
date
on
which
the
notice/memo's advise from the bank was
received by the drawee/payee or holder of
the
cheque
regarding
its
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 by 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 chque money is
not paid during this period), the date on
which the said notice is received or served
to the drawer/payer of the cheque (to
determine the date on which the offence is
made out, in case the cheque money is
not paid within 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 not jurisdiction to
entertain the complaint for offense
under Section 138, NI Act."

9. From the above observation, this
much is clear that the date of the receipt of
notice is very much important but it is not
necessary that any particular date as regard
receipt
of
demand
notice
should
mandatorily be mentioned in the complaint
itself. In judgment of Deepak Kumar and
Another (supra), this High Court observed
that in case dates are not revealed in the
complaint, the same can be inferred from
the paper on record.

10. The Supreme Court in Ajeet Seeds
Limited vs. K. Gopala Krishnaiah; (2014)
12 SCC 685, specifically dealt with the
absence of averments in a complaint about
service of notice upon accused. In the
aforesaid case, the Supreme Court agreed
with the view taken in C.C. Alavi Haji vs.
Palapetty Muhammed (supra), the court
explained the nature of presumptions which
can be drawn under section 114 of the
Evidence Act and under 27 of the General
Clauses Act. It was held as below:-

"9. This Court then explained
the nature of presumptions under Section
114 of the Evidence Act and under Section
27 of the GC Act and pointed out how
these two presumptions are to be employed
while considering the question of service
of notice under Section 138 of the NI Act.
The relevant paragraphs read as under:

"13. According to Section 114 of
the
Act,
read
with
Illustration
(f)
thereunder, when it appears to the Court
that the common course of business
renders it probable that a thing would
happen, the Court may draw presumption
that the thing would have happened,
unless there are circumstances in a
particular case to show that the common
course of business was not followed. Thus,
Section 114 enables the Court to presume
the existence of any fact which it thinks
likely to have happened, regard being had
to the common course of natural events,
human conduct and public and private
business in their relation to the facts of
the particular case. Consequently, the
court can presume that the common
course of business has been followed in
particular
cases.
When
applied
to
communications sent by post, Section 114
enables the Court to presume that in the
common course of natural events, the
11 All. Prashant Chaudhary Vs. Ritesh Kumar Singh.
805
communication would have been delivered
at the address of the addressee. But the
presumption that is raised under Section
27 of the G.C. Act is a far stronger
presumption. Further, while Section 114
of Evidence Act refers to a general
presumption, Section 27 refers to a
specific presumption. For the sake of
ready reference, Section 27 of G.C. Act is
extracted below:

"27. 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
'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".

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 Vs. Natthu Singh
(1992) 1 SCC 647; State of M.P. Vs.
Hiralal & Ors. (1996) 7 SCC 523 and
V.Raja Kumari Vs. P.Subbarama Naidu &
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."

10. It is thus clear that Section
114 of the Evidence Act enables the Court
to presume that in the common course of
natural events, the communication would
have been delivered at the address of the
addressee. Section 27 of the GC Act gives
rise to a presumption that service of notice
has been effected when it is sent to the
correct address by registered post. It is not
necessary to 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."

From the above judgment of the
Supreme Court, the controversy which has
been raised by the petitioner is set at rest.

11. In this case the complainant, in his
complaint, clearly stated that the notice was
sent
through
a
registered
post
on
806 INDIAN LAW REPORTS ALLAHABAD SERIES
19.11.2019 and that it was never returned
to the complainant. In view of the above
statement in the complaint and in view of
the papers produced viz, the cheque, the
Bank memo, demand notice, the disclosure
of material dates like, date of dishounor,
date of sending the notice, the date on
which 15 days elapsed, the date of the
filing of the complaint clearly and
explicitly mentioned in para no. 12 of the
complaint, there remains no doubt that the
petition is wholly without merit. It may
specifically be noted that para no. 12 of the
complaint discloses a date of service of notice as
well, a fact which has been conveniently ignored
by the accused petitioner all the while. In my
view, an attempt to stall the proceedings has been
made on the basis of non-existent ground.

12. I do not find any infirmity, illegality or
irregularity in the summoning order dated
10.12.2020 as well as the order dated
20.01.2023. Therefore, this petition is hereby
dismissed.
----------
(2023) 11 ILRA 806
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.10.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Matters Under Article 227 No. 5460 of 2023(Criminal)

Data Ram & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Arvind Srivastava-III, Sri Pradeep Kumar

Counsel for the Respondents:
G.A., Sri Rakesh Kumar Rathore, Sri Sanjeev
Kumar
Criminal Law - Indian Penal Code, 1860 -
Sections 323, 425, 504 & 506 - Against
Summoning
order
-
Code
of
Criminal
Procedure, 1973 - Section 200 - Respondent
no. 2's grievance is that his FIR was not lodged,
his application to SSP ignored and his
application under Section 156(3) CrPC treated
as complaint - Complaint disclosed offences
under Section 436 IPC and other sections
regarding loot of household articles and
money, not considered by Magistrate,
petitioners were summoned under limited
sections - Respondent no. 2 could not seek
redress
before
district
court,
while
petitioners pursued prolonged litigation of
their choice - Despite engaging counsel,
respondent no. 2 received no effective
representation, indicating his inability to
protest petitioners - Thus, at stage of
summoning, no need to pass detailed
order - Impugned order, being based on
complaint's contents and evidence, cannot
be termed non-speaking - Petition, being
devoid of merit and filed with ulterior
motive to deny justice to respondent no. 2
- Remedy for petitioners is to move
application for discharge at stage of
framing of charge or recording of St.ment.
(Para 14, 15, 21)

Petition dismissed. (E-13)

List of Cases cited:

1. Lalan Kumar Singh & ors. Vs St. of Mah.,
2022 LiveLaw (SC) 833

2. Anil Saran Vs St. of Bihar, (1995) 6 SCC 142

3. Kanti Bhadra Shah Vs St. of W.B., AIR 2000
SC 522

4. M/s Pepsi Foods Ltd. Vs Special Judicial
Magistrate, AIR 1998 SC 128

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Pradeep Kumar,
advocate holding brief of Sri Arvind
Srivastava,
learned
counsel
for
the