# Rajanikant Mani Tripathi Revisionist v. State of U.P. & Anr. 552 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 12 ILRA 551
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-17
- **Case number:** Crl. Rev. No. 929 of 2020
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajanikant-mani-tripathi-revisionist-v-state-of-u-p-anr-552-indian-law-reports-45641
- **Pages:** 6

## Headnote

A. Code of Criminal Procedure, 1973-Section
397/401 & Negotiable Instrument Act,
1881-Section 138 & General Clause Act,
1897-Section 27- quashing of-summoning
order- challenge to-maintainability ofwhether complaint time barred- notice
issued and was served through speed post
and it was deemed to be sufficiently served
up-payment was not made within fifteen
days-then after within thirty days complaint
was filed-presumption made by trial judge
for service of notice is not in accordance
with principles laid by Apex Court-it cannot
be said that the complaint is ex-facie barred
by time-on the basis of statement recorded
u/s 200 and evidence given u/s 202, offence
u/s 138 was made out-trial court failed to
appreciate facts and law and dismissed the
complaint.(Para 2 to 11)

The Revision is allowed. (E-6)

List of Cases cited: -

## Text

12 All. Rajanikant Mani Tripathi Vs. State of U.P. & Anr.
551
criminal psychology, in light of the
observations of the D.P.O; does not have a
criminal history; has been in confinement
for an unduly long period of time, in as
much as the trial has not concluded within
time frame contemplated by the Act. Even
otherwise, there does not appear to exist
any factor or circumstance mentioned in
Section 12 of the Act as may disentitle the
applicant to grant of bail, at this stage.

20. In view of the above, it appears that the
findings recorded by the learned Court below are
in conflict with the settled principle in law, for the
purpose of grant of bail and are erroneous and
contrary to the law laid down by this court.
Consequently, those orders cannot be sustained.
The order dated 20.1.2020 passed by learned
Additional Sessions Judge, Court No.1, Hathras
and order dated 13.11.2019 passed by the Juvenile
Justice Board, Hathras are hereby set-aside.

21. In view of the observations made
above, the present criminal revision is allowed.
Let the revisionist/applicant- Lalit @ Chhena
involved in the aforesaid case crime be released
on bail through his natural guardian/ father,
upon his father furnishing personal bond with
two sureties each of like amount, to the
satisfaction of the court concerned with the
following conditions:

(i) That the natural guardian will furnish
an undertaking that upon release on bail the
juvenile will not be permitted to come into
contact or association with any known
criminal or allowed to be exposed to any
moral, physical or psychological danger and
further that the father will ensure that the
juvenile will not repeat the offence.

(ii) The revisionist through his natural
guardian will report to the District
Probation Officer on the first Wednesday of
every calendar month commencing with the
first Wednesday of February, 2021 and if
during any calendar month the first
Wednesday falls on a holiday, then on the
next following working day.

(iii) The District Probation Officer will
keep strict vigil on the activities of the
revisionist and regularly draw up his social
investigation
report
that
would
be
submitted to the Juvenile Justice Board,
Hathras on such periodical basis as the
Juvenile Justice Board may determine.

(iv) The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad or the certified copy issued by
the Registry of the High Court, Allahabad.

(v) The computer generated copy of
such order shall be self attested by the
counsel of the party concerned.

(vi)
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court Allahabad
and
shall
make
a
declaration of such verification in writing.

22. However, considering the peculiar
facts and circumstances of the case, the court
below is directed to make every possible
endeavour to conclude the trial of the
aforesaid case within a period of four months
from today without granting unnecessary
adjournments to either of the parties.
----------
(2020)12ILR A551
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.11.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Crl. Rev. No. 929 of 2020

Rajanikant Mani Tripathi ...Revisionist
Versus
State of U.P. & Anr. ...Respondents
552 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Revisionist:
Sri Hari Om Ojha, Sri Rishi Kant Rai

Counsel for the Respondents:
A.G.A.

A. Code of Criminal Procedure, 1973-Section
397/401 & Negotiable Instrument Act,
1881-Section 138 & General Clause Act,
1897-Section 27- quashing of-summoning
order- challenge to-maintainability ofwhether complaint time barred- notice
issued and was served through speed post
and it was deemed to be sufficiently served
up-payment was not made within fifteen
days-then after within thirty days complaint
was filed-presumption made by trial judge
for service of notice is not in accordance
with principles laid by Apex Court-it cannot
be said that the complaint is ex-facie barred
by time-on the basis of statement recorded
u/s 200 and evidence given u/s 202, offence
u/s 138 was made out-trial court failed to
appreciate facts and law and dismissed the
complaint.(Para 2 to 11)

The Revision is allowed. (E-6)

List of Cases cited: -

1. Kaushalya Devi Massand Vs Roopkishore
Khore (2011) AIR SC 2566

2. Subodh S. Salaskar Vs Jayprakash M. Shah &
anr. in Crl. Appl.No. 1190 of 2008 (SLP (CrL.)
No. 541 of 2008)

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

4. Dr. Vinod Shivappa Vs Nanda Belliappa ,
(2006) AIR SC 2179

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. This criminal revision under Section
397/401 of Cr.P.C. has been filed by
Rajanikant Mani Tripathi, against State of U.P.
and another, against judgment and order dated
7.2.2020,
passed
by
Prescribed
Authority/Additional
Court
(Negotiable
Instrument
Act),
Gorakhpur,
whereby
Criminal Case No. 473 of 2018, under Section
138 of N.I. Act, P.S. Kotwali, District
Gorakhpur,
was
dismissed,
with
this
contention that learned trial Judge failed to
appreciate facts placed on record. Order dated
7.2.2020 was against the provision of N.I. Act.
A notice to opposite party No. 2 was sent on
18.12.2017 and as per provision of Section 27
of General Clauses Act, presumption of its
service, in case of its non return back to
sender, is to be drawn after thirty days and
after thirty days, it may be presumed that
notice has been served upon the addressee and
if within fifteen days of same, amount is not
paid, then cause of action arises. Applicantrevisionist has sent notice of dishonour of
cheque to opposite party No. 2, drawer of
cheque on 18.12.2017, it was a registered
notice which had yet not been received back
and presumption of service may be taken by
the Court on 17.1.2018 i.e. after thirty days.
This complaint for offence punishable under
Section 138 of N.I. Act was filed before Court
on 15.2.2018, which is withing thirty days
form the date of arising of cause of action on
17.1.2018. But the Court failed to consider
above provision of General Clauses Act and
thereby rejected complaint on the ground of
delayed filing. It was an order apparently
erroneous on the face of it. Hence, this
revision with prayer for setting aside
impugned judgment and order dated 7.2.2020
of trial Court of Additional Court No.
1(Negotiable Instrument Act) Gorakhpur, in
complaint case No. 473 of 2018, under Section
138 of N.I. Act, Rajanikant Mani Tripathi Vs.
Kiran Yadav and and remit the matter to Court
below for further hearing in the case.

2. Learned counsel for the revisionist
argued that as per Section 138 of N.I. Act-
Where any cheque drawn by a person on an
account maintained by him with a banker
12 All. Rajanikant Mani Tripathi Vs. State of U.P. & Anr.
553
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.

3. Hon'ble Apex Court in Kaushalya
Devi Massand vs Roopkishore Khore,
AIR 2011 SC 2566, has observed that the
gravity of a complaint under the Negotiable
Instruments Act cannot be equated with an
offence under the provisions of the Indian
Penal Code or other criminal offences. An
offence
under
Section
138
of
the
Negotiable Instruments Act, 1881, is
almost in the nature of a civil wrong which
has been given criminal overtones. The
notice was issued by way of registered post
and its presumption of service under
Section 27 of General Clauses Act may be
after thirty days but the trial Judge has
presumed service within 2 to 3 days on the
ground that drawer and drawee of cheque,
both were resident of city Gorakhpur.
Hence, presumption of service is to be
within 2 to 3 days and on the basis of this
presumption, the complaint has been held
to
be
of
time barred.
Accordingly,
prosecution has been dismissed. Hence, this
revision.

4. Even after service of notice to
opposite party No. 2, none appeared to
oppose this criminal revision.

5. Learned AGA has vehemently
opposed this criminal revision with this
contention that learned trial Court has
appreciated facts and law and has passed
impugned order in accordance with law.

6. Having heard learned counsels for
both sides and gone through the material on
record, it is apparent that in this case, a
complaint was filed by Rajanikant Mani
Tripathi against Kiran Yadav, for an
offence punishable under Section 138 of
N.I. Act, P.S. Kotwali, District Gorakhpur,
with this contention that Kiran Yadav
received Rs. 4 lacs by cash as well as
cheque, for construction work as well as
payment of E.M.I. of bus from complainant
and in lieu of said liability, issued a cheque
No. 788900 of Punjab and Sindh Bank,
Golghar, Gorakhpur, of her account, for Rs.
1,60,000/- on 23.10.2017. This cheque was
554 INDIAN LAW REPORTS ALLAHABAD SERIES
deposited in the Bank of complainant ICICI
Bank, Bank Road, Gorakhpur, in his account, in
first week of November. But it was dishonored
by bank memo dated 14.11.2017, for
insufficiency of amount. This was received by
complainant on 22.11.2017. Then after, within
thirty days, a payment notice through counsel
by registered post was issued to drawer of
cheque on 18.12.2017. It was received by
drawer but payment was not made. Hence, this
complaint was filed in the computer Section of
the Court concerned on 15.2.2018. Thereafter, it
was registered on 16.2.2018. Complainant-
Rajanikant Mani Tripathi was examined by
way of affidavit under Section 200 of Cr.P.C.,
whereas documentary evidence- notice issued
as payment notice dated 18.12.2017, receipt of
registered post dated 18.12.2017, concerned
cheque dated 23.10.2017, dishonour memo
dated 14.11.2017, was annexed with affidavit.
The offence punishable under Section 138 of
N.I. Act was said to be made out and was
requested for punishment. Learned Trial Judge
dismissed this complaint under Section 203 of
Cr.P.C., that too, on the ground of being time
barred. The main contention was about
presumption of service of notice, which was
said to be after thirty days from date of issuing
notice by way of registered post and non-return
of same to sender, under Section 27 of General
Clauses Act, whereas learned presiding Judge
held that complaint ought to be filed within
2.2.2018 but it was filed on 15.2.2018 and
service of notice may be presumed to be
sufficient within 24 to 48 hours. Hence, the
main question was about time limit for
presuming service of notice, sent by way of
registered post, in accordance with Section 27
of General Clauses Act.

7. Section 27 of General Clauses Act
1897, provides:-

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. This Court in Smt.
Vandana Gulati vs Gurmeet Singh Alias
Mangal Singh, AIR 2013 Alld 69, has held
that notice sent by registered post to the
person concerned at the proper address
shall be deemed to be served upon him in
the due course unless contrary is proved.
Endorsement "not claimed/not met" is not
sufficient to prove deemed service of the
notice.

8. Apex Court in Subodh S. Salaskar
Vs. Jayprakash M. Shah & another, in
Criminal Appeal No. 1190 of 2008
(arising out of SLP (Crl.) No. 541 of
2008), while reiterating three Judges Bench
decision of Apex Court in C.C. Alavi Haji
Vs. Palapetty Muhammed and another
(2007) 6 SCC 555, has propounded that
presumption of service, under the statute is
arises not only when it is send by registered
post in terms of Section 27 of General
Clauses Act. But such presumption may be
raised also under Section 114 of Evidence
Act. In paragraph No. 17 of C.C. Alavi
Haji's case (supra):-

"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
12 All. Rajanikant Mani Tripathi Vs. State of U.P. & Anr.
555
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
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."

[Emphasis supplied]

9. In paragraph No. 23 of Subodh S.
Salaskar's case (supra):-

"23. The complaint petition admittedly
was filed on 20.04.2001. The notice having
been sent on 17.01.2001, if the presumption
of service of notice within a reasonable
time is raised, it should be deemed to have
been served at best within a period of thirty
days from the date of issuance thereof, i.e.,
16.02.2001. The accused was required to
make payment in terms of the said notice
within fifteen days thereafter, i.e., on or
about 2.03.2001. The complaint petition,
therefore, should have been filed by
2.04.2001."

10. Meaning thereby, presumption of
service of notice within a reasonable time is
to be raised. It should be deemed to have
been served at best within a period of thirty
days from the date of issuance thereof.
Meaning thereby, the reasonable period for
presumption of service may be up to 30
days from date of its issuance. Hence, in
present case, notice issued was said to be
served and it was issued on 18.12.2017. It
was sent through speed post and it was
deemed to be sufficiently served up to
17.1.2018 and within fifteen days payment
was not made. Then after within thirty days
this complaint was filed. Hence, apparently
this complaint was not time barred. The
presumption made by trial Judge for
service of notice on 20.12.2017 is not in
accordance with principles laid by Apex
Court, as above in Subodh S. Salaskar's
case (supra) and in Dr. Vinod Shivappa vs
Nanda Belliappa, AIR 2006 SC 2179 as
well as Section 27 of General Clauses Act,
1897. Hence, on the basis of statement
recorded
under
Section
200
and
documentary evidence given under Section
202 of Cr.P.C., offence punishable under
Section 138 of N.I. Act was, prima facie,
made out. But learned trial Court has failed
to appreciate facts and law, has presumed
service of notice within 20.12.2017 and has
dismissed
complaint.
This
order
is
apparently erroneous on the face of it and is
under mis-exercise of jurisdiction of
learned trial Court. Accordingly, this
revision merits its allowance.

11. Allowed.

12. Impugned order dated 7.2.2020 is
being set aside. File is remanded back to
556 INDIAN LAW REPORTS ALLAHABAD SERIES
trial Court concerned for hearing and
passing order afresh, at an earliest.
----------
(2020)12ILR A556
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2020

BEFORE

THE HON'BLE DEEPAK VERMA, J.

Crl. Rev. No. 1266 of 2020

Kanchan Sonkar ...Revisionist
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Revisionist:
Sri Anil Kumar Dubey, Sri Shailendra Kumar Rai

Counsel for the Respondents:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 397/401 & Indian
Penal Code, 1860-Sections 147, 148, 149,
302, 34, 307 & Juvenile Justice(Care and
Protection of Children) Act, 2015-section
12-application-rejection-grant of bail to
juvenile-juvenile is entitled to the benefit of
the provisions of the Act-U/s 12 the prayer
for bail may be rejected if there appear
reasonable grounds for believing that the
release of the juvenile is likely to bring him
into the association with any known
criminal or expose him to moral, physical or
psychological danger or that his release
would defeat the ends of justice-gravity of
the offence should not be taken as an
obstacle by the Legislature to refuse bail to
a delinquent juvenile-Hence, order passed
by the learned Court below cannot be
sustained-findings recorded by lower court
are in conflict with the settled principle in
law, for the purpose of grant of bail and
erroneous and contrary to the law.(Para 4 to
20)

B. Once a person is held to be a juvenile in
conflict with law, then Section 12 of the
Act would govern the question of grant of
bail and the custody of juvenile and it will not
be governed by the provisions of the code of
criminal procedure. It is important to note
that gravity or seriousness of the offence,
should not be taken as an obstacle or
hindrance by the Legislature to refuse bail to
a delinquent juvenile. (Para 9)

The Criminal Revision is allowed. (E-6)

List of Cases cited:-

1. Shiv Kumar @ Sadhu Vs St. of U.P. (2010) 68
ACC 616 LB

2. Abdullah @ Abdul Hassan Vs St. of U.P. &
ors. (2015) 90 ACC 204

3. Maroof Vs St. of U.P. & anr. (2015) 6 ADJ 203

4. Suraj @ Ashok Sukla Thru. Father Mahendra
Shukla Vs St. of U.P. & anr. Crl. Rev. No. 112 of 2015

5. Amit Kumar Vs St. of U.P. (2010) 71 ACC 209

6. Sanjay Chaurasia Vs St. of U.P. (2006) Cr.L.J.
2957

7. A. Juvenile Vs St. of Ori., (2009) Cr. L.J., 2002

8. Kamal Vs St. of Har. (2004) 13 SCC 526

9. Takht Singh Vs St of M.P., (2001) 10 SCC 463

10. Dharmendra (Juvenile) Vs St. of U.P. &
ors.,(2018) 7 ADJ 864

11.
Japani
Sahoo
Vs
Chandra
Sekhar
Mohanty,(2007) 7 SCC 394

(Delivered by Hon'ble Deepak Verma, J.)

1. List revised. Despite service of
notice, none appears on behalf of the
opposite party no. 2 to oppose the present
criminal revision.

2. Heard learned counsel for the
revisionist and learned A.G.A for the State
and
perused
the
record.