# Rajendra v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 2 ILRA 1279
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-25
- **Case number:** Application u/s 482 No. 45953 of 2023
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-v-state-of-u-p-anr-opp-parties-51335
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 482 - Negotiable
Instruments Act, 188 - Sections 94, 138
& 142(1)(b) - Indian Evidence Act, 1872 -
Sections 65-B & 114 - Information
Technology Act, 2000 - Sections 2(1)(r),
4, 12 & 13 - General Clauses Act, 1977 -
Section 27 - Application u/s 482 - for quashing
the summoning order as well as the entire
criminal proceedings - cheque dishonour case -
complaint case - Summoning order - question
of law - maintainability of premature complaint
case - applicant contended that the complaint
was premature, having been filed before the
mandatory 15-day period post service of notice
had lapsed, and further argued that the absence
of a specific service date rendered the complaint
defective - court, relying on the Supreme
Court's ruling in C.C. Alavi Haji, held that service
of notice sent via registered post to the correct
address can be presumed under Section 27 of
the General Clauses Act and Section 114 of the
Evidence Act, and that the complaint need not
explicitly mention the date of service - The court
also recognized electronic modes of service such
as email and WhatsApp as valid under Sections
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
4, 12, and 13 of the Information Technology
Act, 2000, read with Section 65-B of the
Evidence
Act,
provided
the
records
are
accessible for future reference - Since, the cheque
had bounced on 13.07.2022, notice was sent on
23.07.2022, and the complaint was filed on
31.08.2022, the court found no procedural defect and
direction issued to the trial court to insist on post
tracking reports and accept electronic notices as valid
- consequently, instant application stands dismissed.
(Para - 20, 22, 24, 25, 26, 27, 28)

Application Allowed. (E-11)

List of referred Cases: -

## Text

2 All. Rajendra Vs. State of U.P. & Anr.
1279
Act and to provide the necessary assistance
for the execution of the rights."

7. From the above provisions of the
POCSO Act as well as of the SC/ST Act, 1989,
it is clear that the victim or the complainant has
right to information about the pendency of any
proceeding in the respective acts and it is duty
of Investigating Officer, to inform them.

8. If on receiving the intimation from the
office of Government Advocate, High Court,
Allahabad, concerned police officer informs the
complainant and victim about the pendency of
case involving the offence under the POCSO
Act or SC/ST Act and submit its report along
with the instructions to the office of
Government Advocate, then it will save the
precious time for disposal of case and there will
be no requirement on the part of court to issue
notice to the victim and complainant at the time
of admission of case.

9. Therefore, this court directs the
Director General of Police, UP, Lucknow to
issue necessary direction to all the police
officials that whenever they receive any letter or
intimation from the office of Government
Advocate, High Court, Allahabad seeking
instructions regarding the cases involving
offence under the POCSO Act or SC/ST Act,
then the concerned police officer before sending
instructions to the High Court must intimate to
the complainant/victim about the pendency of
case before the High Court and there should be
endorsement
of
complainant
or
victim
regarding service of that notice or intimation,
which should be forwarded to the office of
Government Advocate, High Court, Allahabad
along with instructions.

10. Registrar (Compliance) is directed to
send copy of this order to the Director General
of Police,
 UP, Lucknow for necessary compliance.

11. Issue notice to opposite party no.2.
----------
(2024) 2 ILRA 1279
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.01.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application u/s 482 No. 45953 of 2023

Rajendra ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Sunil Kumar, Sri Chandan Singh, Sri Narendra
Singh

Counsel for the Opp. Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 482 - Negotiable
Instruments Act, 188 - Sections 94, 138
& 142(1)(b) - Indian Evidence Act, 1872 -
Sections 65-B & 114 - Information
Technology Act, 2000 - Sections 2(1)(r),
4, 12 & 13 - General Clauses Act, 1977 -
Section 27 - Application u/s 482 - for quashing
the summoning order as well as the entire
criminal proceedings - cheque dishonour case -
complaint case - Summoning order - question
of law - maintainability of premature complaint
case - applicant contended that the complaint
was premature, having been filed before the
mandatory 15-day period post service of notice
had lapsed, and further argued that the absence
of a specific service date rendered the complaint
defective - court, relying on the Supreme
Court's ruling in C.C. Alavi Haji, held that service
of notice sent via registered post to the correct
address can be presumed under Section 27 of
the General Clauses Act and Section 114 of the
Evidence Act, and that the complaint need not
explicitly mention the date of service - The court
also recognized electronic modes of service such
as email and WhatsApp as valid under Sections
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
4, 12, and 13 of the Information Technology
Act, 2000, read with Section 65-B of the
Evidence
Act,
provided
the
records
are
accessible for future reference - Since, the cheque
had bounced on 13.07.2022, notice was sent on
23.07.2022, and the complaint was filed on
31.08.2022, the court found no procedural defect and
direction issued to the trial court to insist on post
tracking reports and accept electronic notices as valid
- consequently, instant application stands dismissed.
(Para - 20, 22, 24, 25, 26, 27, 28)

Application Allowed. (E-11)

List of referred Cases: -

1. Ali Jan Vs St. of U.P. & anr. - (Application u/s 482
No.98 of 2020 - decided vide order dt. 31.01.2020),

2. Santosh Kumar Shrivastava Vs St. of U.P. & anr. -
(Application u/s 482 No.29097 of 2023 - decoded
vide order Dt. 21.08.2023),

3. Yogendra Pratap Singh Vs Savitri Pandey & anr. -
2014 (10) SCC 713,

4. Manoj Kumar Nag Vs St. of Jharkhand & anr. -
(Criminal Revision No.827 of 2012 decided vide order
Dated 16.07.2021),

5. C. C. Alavi Haji vs Palapetty Muhammed & anr. -
2007 (6) SCC 555,

6. Subodh S. Salaskar vs Jayprakash M. Shah & anr. -
(2008) 13 SCC 689,

7. K. Bhaskaran Vs Sankaran Vaidhyan Balan -
(1999) 2 SCC 510,

8. Vinod Shivappa vs Nandabelliappa - 2006 (6) SCC
456,

9. M/s Ajeet Seeds vs K. Gopal Krishnaiah - 2014 (12)
SCC 685.

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard learned counsel for the applicant
and Sri Padmakar Rai, learned AGA for the
State.

2. The present application u/s 482 Cr.P.C.
has been filed to quash the summoning order
dated 09.11.2022 as well as the entire
proceedings of Complaint Case No.3721 of
2022 (Shiv Prakash Tiwari Vs. Rajendra), under
Section 138 of the Negotiable Instruments Act,
1881 (hereinafter referred to as the 'Act, 1881'),
Police Station- Nagirabad, District- Kanpur
Nagar, pending in the court of learned
Metropolitan Magistrate, VIII, Kanpur Nagar.

3. The learned counsel for the applicant
contends that the impugned complaint is itself
defective as the same was filed before the
expiration of 15 days from the date of service of
notice. It is further contended by learned
counsel for the applicant that after bouncing the
cheque on 13.07.2022, legal notice was sent to
the applicant by the opposite party no.2 on
23.07.2022 and, thereafter, without mentioning
any date for service of notice, the complaint
was filed on 31.08.2022. It is further contended
by learned counsel for the applicant that in the
absence of any date of service mentioned in the
complaint, the presumption of 30 days under
Section 27 of the General Clauses Act, 1977,
should come into play, and it should have been
filed after 45 days of sending a notice. In
support of his contention, learned counsel for
the applicant has relied upon the judgement of
the co-ordinate Bench of this Court passed in
Application u/s 482 No.98 of 2020 (Ali Jan
Vs. State of U.P. and Another) vide order
dated 31.01.2020 and another judgement of
the co-ordinate Bench of this court in
Application u/s 482 No.29097 of 2023
(Santosh Kumar Shrivastava Vs. State of
U.P. and Another) vide order dated
21.08.2023. Learned counsel for the
applicant
has
also
relied
upon
the
judgement of Yogendra Pratap Singh Vs.
Savitri Pandey & Anothers reported in
2014 (10) SCC 713, as well as the
judgement of Jharkhand High Court in
Criminal
Revision
No.827
of
2012
2 All. Rajendra Vs. State of U.P. & Anr.
1281
(Manoj Kumar
Nag Vs.
State
of
Jharkhand & Another) vide order dated
16.07.2021. Lastly, it was contended by
learned Counsel for the applicant that in the
above judgment, it is clear that if the
complaint is filed before the expiry of 15
days from the date of service of notice, then
that is no complaint in the eyes of the law.

4. Per contra, learned AGA has
contended that it is an established legal
position of law that date of service of
notice sent by the complainant upon the
drawer of the cheque is not required to be
mentioned in the complaint and the defence
whether notice has been served or not upon
the drawer of the cheque can be considered
during the trial, and that cannot be a case
for quashing the proceeding of a complaint
under the Act of 1881.

5. After hearing the parties, the
following questions arise for consideration;

i.
Whether
the
impugned
complaint is defective under Clause (c) of
the proviso to Section 138 of the
Negotiable Instrument Act, being filed
before the expiry of Fifteen days from the
date of service of notice.?

ii. Whether the law requires to
mention the date of service of notice upon
drawer in the complaint filed against him
under Section 138 N.I. Act ?

6. from the perusal of the record, it
appears that after the bouncing of the
cheque on 13.07.2022 legal notice was sent
by opposite party no.2 through registered
post on 23.07.2022, though no date of
service was mentioned in the complaint,
and the same was filed on 31.08.2022.

7. Hon'ble Apex Court in C. C. Alavi
Haji vs Palapetty Muhammed and
another; 2007 (6) SCC 555 observed that
in case of notice through registered post on
the correct address of the drawer, the
presumption of service upon drawer can be
made under Section 27 of General Clause
Act by taking into consideration the time
for service of notice in the ordinary course
of business. The Hon'ble Apex Court
further observed that in that case, apart
from the Section 27 of General Clause Act
presumption under Section 114 of Evidence
Act is available to presume the service
upon the drawer in the common course of
business. Paras 13, 14, 15 and 17 of the
judgement C. C. Alavi Haji (supra) are
being quoted hereinbelow;

"13. According to Section 114 of
the
Act,
read
with
Illustration
(f)
thereunder, when it appears to the courtthat
the common course of business renders it
probable that a thing would happen, the
court may draw a 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
communication would have been delivered
at the address of the addressee. But the
presumption that is raised under Section 27
of the GC Act is a far stronger
presumption. Further, while Section 114 of
the Evidence Act refers to a general
1282 INDIAN LAW REPORTS ALLAHABAD SERIES
presumption, Section 27 refers to a specific
presumption. For the sake of ready
reference, Section 27 of the GC Act is
extracted below:

"27. Meaning of service by post.?
Where any Central Act or Regulation made
after the commencement of this Act
authorises or requires any document to be
served by post, whether the expression
'serve' or either of the expression '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 v. Natthu Singh; State
of M.P. v. Hiralal and V. Raja Kumari v. P.
Subbarama
Naidu.)
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
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
2 All. Rajendra Vs. State of U.P. & Anr.
1283
provide him an opportunity to make
amends.

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
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 2 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."

8. From the observation of the Apex
Court mentioned above in C. C. Alavi Haji
(supra), it is a clear case that if the
complainant sends notice to the drawer
through registered post though no date of
service is mentioned, even then, the court
can presume under Section 114 of the
Evidence Act as well as Section 27 of the
General Clause Act that the notice has been
served in time when a letter sent through
the registered post would have been
delivered in the ordinary course of
business. The question arises: what would
be the time the court may presume delivery
of the registered letter in the ordinary
course of business because no such time is
mentioned in Section 114 of the Evidence
Act or Section 27 of the General Clause
Act. For reference, Section 114 of the
Evidence Act, as well as Section 27 of the
General Clause Act are being quoted
hereinbelow respectively ;

"Section 114- The Court may
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."

Section 27- Meaning of service by
post.- Where any Central Act or Regulation
made after the commencement of this Act
authorises or requires any document to be
served by post, whether the expression
'serve' or either of the expression 'give' or
'send' or any other expression is used, then,
unless a the different intention appears, the
service shall be deemed to be effected by
properly addressing, prepaying 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."

9. Hon'ble Apex Court in the case of
Subodh S. Salaskar vs Jayprakash M.
Shah and another (2008) 13 SCC 689
after considering Section 27 of General
Clause Act and Order 5 Rule 9(5) of the
Code of Civil Procedure, 1908, observed
that ordinarily 30 days must be held to be
1284 INDIAN LAW REPORTS ALLAHABAD SERIES
sufficient for service of notice if same is
sent through registered post and with
further observation that if service of notice
is effected through speed post, ordinarily
the service takes place within a few days.
Para 23 of the judgement of Subodh S.
Salaskar's (supra) case is being quoted
hereinbelow;

"23. Thirty days ordinarily must
be held to be sufficient for service of notice.
In fact, when the service of notice is sought
to be effected by speed post, ordinarily the
service takes place within a few days. Even
under Order 5 Rule 9 (5) of the Code of
Civil
Procedure,
1908,
summons
is
presumed to be served if it does not come
back within thirty days. In a situation of
this nature, there was no occasion for the
Court to hold that service of notice could
not be effected within thirty days."

10. The above judgement of the
Hon'ble Supreme Court was delivered in
the year 2008 considering the efficiency of
service of the post office at that time. Even
Hon'ble Apex Court has not presumed that
30 days will always be counted for service
of notice if the same is sent through
registered post and is not returned. Now,
almost 15 years have passed, much water
has flown under the bridge and delivery of
letters through the postal department has
become so fast that presuming 30 days for
service delivery for the registered post does
not appear correct. Even the Order 5 Rule
9(5) of C.P.C. provides presumption for
delivery of service of summons through
registered post, if not received back within
30 days from the date of issuance of
summons cannot be equated with the present
service of notice under N.I. Act because giving
of notice cannot be equated with the service of
notice under N.I. Act, and if such pleas are
allowed, then dishonest drawer of the cheque
may get an unnecessary advantage, especially
when drawer of the cheque did not denied the
receiving of statutory notice.

11. In the K. Bhaskaran Vs. Sankaran
Vaidhyan Balan; (1999) 2 SCC 510, Hon'ble
Apex Court Observed, "it must be born in mind
that the court should not adopt an interpretation,
which helps a dishonest evader and clips an
honest payee, as that would defeat the very
legislative measure."

12. Proviso (b) of Section 138 N. I. Act
provides giving a notice in writing, but no mode
of sending notice is provided in Section 138
N.I. Act but Section 94 of N.I. Act provides that
notice of dishonour may be given oral or
written and may, if written, be sent by post. But
this section does not mandatorily provide that
written notice should be sent only by post.

13. Section 4 of the Information
Technology Act, 2000 (hereinafter referred to as
'I.T. Act') provides where any law provides the
information shall be in writing or in typewritten
or printed form then, notwithstanding anything
contained in such law, such requirement shall
be deemed to have been satisfied if such
information is given in electronic form and
accessible so as to be usable for subsequent
reference. Section 4 of I. T. Act is being
reproduced hereinbelow;

"4. Legal recognition of electronic
records.- Where any law provides that
information or any other matter shall be in
writing or in the typewritten or printed
form,
then,
notwithstanding
anything
contained in such law, such requirement
shall be deemed to have been satisfied if
such information or matter is-

(a) rendered or made available in
an electronic form and

(b) accessible so as to be usable
for a subsequent reference."
2 All. Rajendra Vs. State of U.P. & Anr.
1285

14. Therefore, Section 4 of the I.T.
Act
very
clearly
provides
that
notwithstanding anything contained in such
law which provides notice in written form
then written will also include the notice
rendered or made available in electronic
form, which should be available for
subsequent reference. The word 'electronic
form' is defined in Section 2(1)(r) of I.T.
Act, which provides any information
generated, sent, received or stored in
media,
magnetic,
optical,
computer
memory, micro film, computer generated
micro fiche or similar device. Therefore, it
is clear from the provision the notice
mentioned in Section 138 N.I. Act will also
include email or WhatsApp if the same
remains available for subsequent reference.

15. Section 65(B) of the Indian
Evidence Act, 1972 also accepts the
admissibility of electronic records. Section
12 of the I.T. Act also provides the
procedure for acknowledgement of receipt
of notice in electronic form. Similarly,
Section 13 of the I.T. Act also provides the
time and place of dispatch of electronic
records.

16. As per Section 13 of the I.T. Act,
as soon as the notice in electronic form is
entered, a computer resource outside the
control of the originator, it is deemed to be
dispatched and as soon as the notice in
electronic form is entered, the designated
computer resource or enters the computer
resources of the addressee, and then it is
deemed to be served. Sections 12 and 13 of
I.T. Act are being quoted as below;

"12.
Acknowledgement
of
receipt. - (1) Where the originator has not
[stipulated] that the acknowledgement of
receipt of electronic record be given in a
particular form or by a particular method,
an acknowledgement may be given by-

(a) any communication by the
addressee, automated or otherwise; or

(b) any conduct of the addressee,
sufficient to indicate to the originator that
the electronic record has been received.

(2) Where the originator has
stipulated that the electronic record shall
be
binding
only
on receipt
of
an
acknowledgement of such electronic record
by him, then, unless acknowledgement has
been so received, the electronic record shall
be deemed to have been never sent by the
originator.

(3) Where the originator has not
stipulated that the electronic record shall
be binding only on receipt of such
acknowledgement,
and
the
acknowledgement has not been received by
the originator within the time specified or
agreed or, if no time has been specified or
agreed to within a reasonable time, then,
the originator may give notice to the
addressee stating that no acknowledgement
has been received by him and specifying a
reasonable
time
by
which
the
acknowledgement must be received by him
and if no acknowledgement is received
within the aforesaid time limit he may after
giving notice to the addressee, treat the
electronic record as though it has never
been sent.

13. Time and place of dispatch
and receipt of electronic record.- (1) Save
as otherwise agreed to between the
originator and the addressee, the dispatch
of an electronic record occurs when it
enters a computer resource outside the
control of the originator.

(2) Save as otherwise agreed
between the originator and the addressee,
the time of receipt of an electronic record
shall be determined as follows, namely :?
1286 INDIAN LAW REPORTS ALLAHABAD SERIES

(a)
if
the
addressee
has
designated a computer resource for the
purpose of receiving electronic records,?

(i) receipt occurs at the time
when the electronic, record enters the
designated computer resource; or

(ii) if the electronic record is sent
to a computer resource of the addressee
that is not the designated computer
resource, receipt occurs at the time when
the electronic record is retrieved by the
addressee;

(b) if the addressee has not
designated a computer resource along with
specified timings, if any, receipt occurs
when the electronic record enters the
computer resource of the addressee.

(3) Save as otherwise agreed to
between the originator and the addressee,
an electronic record is deemed to be
dispatched
at
the
place
where
the
originator has his place of business, and is
deemed to be received at the place where
the addressee has his place of business.

(4) The provisions of sub-section
(2) shall apply notwithstanding that the
place where the computer resource is
located may be different from the place
where the electronic record is deemed to
have been received under sub-section (3).

(5) For the purposes of this section,
? (a) if the originator or the addressee has
more than one place of business, the principal
place of business, shall be the place of
business;

(b) if the originator or the addressee
does not have a place of business, his usual
place of residence shall be deemed to be the
place of business;

(c) "usual place of residence", in
relation to a body corporate, means the place
where it is registered."

17. From the above analysis, it is clear
that
notice
sent
through
'email
or
WhatsApp'
shall
be
deemed
to
be
dispatched and served on the same date, if
it fulfill the above requirement of Section 13
of I.T. Act, 2000.

18. In the present time of digitalization
and computerisation, delivery of post has
become so fast that the court can presume that
a correctly addressed registered post has been
served upon the addressee within a maximum
period of 10 days if the date of service is not
mentioned in the complaint. After the initiation
of the online post tracking system, it is too
easy to know the date of delivery of the
registered post. In the ordinary course of
business, the registered letter is delivered
within 3 to 10 days if correctly addressed.
Therefore, this Court holds that if no date
of service has been mentioned in the
complaint, then the court can presume
under Section 114 of the Evidence Act and
Section 27 of the General Clause Act that
notice would have been served within ten
days from the date of its dispatch. Though it
is always open to the drawer of the cheque
to take the plea during trial, the notice was
never served upon him.

19. In the cases relied upon by the
applicant in Ali Jan (supra), Santosh Kumar
Shrivastava (supra) and Yogendra Pratap
Singh (supra), High Court as well as the
Hon'ble
Supreme
Court
observed
that
complaint beyond the expiry of 15 days from
the date of service is no complaint in the eyes
of the law that legal position is not disputed.
However in none of the judgement, the
court observed that 30 days is required to
be presumed for service of notice from the
date of dispatch through registered post if
date of service is not mentioned in the
complaint.

20. In the present case, as per the
complaint, notice was dispatched by the
2 All. Rajendra Vs. State of U.P. & Anr.
1287
complainant to opposite party no.2 on
23.07.2022; therefore, after presuming ten
days of service of notice upon the
applicant, 15 days will be counted from
2nd August 2022 within which applicant
was required to pay the cheque amount as
demanded by the notice. After that, a
complaint can be filed after 17.08.2022. In
the present case, the complaint was filed on
31.08.2022. Therefore, the complaint was
not defective under Clause (c) of the
proviso of Section 138 as well as Section
142(1)(b) of N.I. Act.

21. So far as the second question is
concerned, whether the date of service of
notice upon drawer is required to be
mentioned in the complaint itself.

22. The Apex Court in C.C. Alavi
Haji (supra) case observed that while
interpreting the Section 138 N.I. Act
regarding service of notice it must be borne
in mind the court should not adopt an
interpretation that helps the dishonest
drawer of the cheque to evade and trap the
honest payee, and it should be incorporated
liberally in favour of the honest payee. The
court further observed that as soon as the
payee dispatched the registered post with
the
correct
address
of
drawer,
the
presumption of service as under Section 27
of the General Clause Act would be
attracted. Para 10 of the C.C. Alavi Haji
(supra) case is being quoted hereinbelow;

"10. It is, thus, trite to say that
where the payee dispatches the notice by
registered post with the correct address of
the drawer of the cheque, the principle
incorporated in Section 27 of the GC Act
would be attracted; the requirement of
Clause (b) of the proviso to Section 138 of
the Act stands complied with and cause of
action to file a complaint arises on the
expiry of the period prescribed in Clause
(c) of the said proviso for payment by the
drawer of the cheque. Nevertheless, it
would be without prejudice to the right of
the drawer to show that he had no
knowledge that the notice was brought to
his address."

23. In the case of Vinod Shivappa vs
Nandabelliappa; 2006 (6) SCC 456, the
Hon'ble Apex Court observed that while
interpreting the statute, the court must
adopt construction, which suppress the
mischief and advance the remedy as per the
rule laid down in Heydon's case which is
known
as
purposive
construction
or
mischief rule. Para 12 of the Vinod
Shivapapa
(supra)
case
is
quoted
hereinbelow;

"12. It is well settled that in
interpreting a statute the court must adopt
that construction which suppresses the
mischief and advances the remedy. This is a
rule laid down in Heydon's case also
known as the rule of purposive construction
or mischief rule."

24. In the judgement of M/s Ajeet
Seeds vs K. Gopal Krishnaiah; 2014 (12)
SCC 685, the Hon'ble Apex Court observed
that it is 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 addressee have knowledge of the
notice because the same is a matter of
evidence, and there is presumption of
service of the registered post under Section
27 of the Evidence Act.

25. Therefore, this Court holds that
there is no legal requirement to mention the
date of service of notice upon the drawer of
the cheque in the complaint itself, if the
notice was sent through registered post,
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
then presumption under Section 27 of the
General Clause The act will automatically
come into the picture.

26. In view of above analysis and
the legal position discussed above,
this Court is of the view that in the
present case, the complaint was filed
after the expiry of 15 days of service
of
notice
upon
the
applicant.
Therefore, there is no defect in the
complaint.
Hence,
there
is
no
illegality in the summoning order.

27. This Court also feels it
appropriate to issue following directions to
all learned Magistrates/Courts:-

(i) Where complaint under N.I.
Act is filed, then the concerned Magistrate/
Court will emphasis for filing the post
tracking report along with the complaint, if
sent through Registered Post, so as to leave
no scope for the dishonest drawer of
cheque from taking the plea of non-service
of statutory notice of 15 days.

(ii). Notice sent through 'email or
WhatsApp' , if it fulfils the requirement
of Section 13 of I.T. Act will also be a
valid notice under Section 138 N.I. Act
to the drawer of cheque, and same will
be deemed to be served on the date of
dispatch, itself.

28.
 Accordingly,
the
present
application is dismissed. However, the
applicant is free to raise the issue of
service during the trial of the complaint
in question.

29. Registrar (Compliance) is
directed to circulate a copy of this order
to all learned District Judges of the
state of Uttar Pradesh, for further
appraisal to concerned Magistrate/Court.
----------
(2024) 2 ILRA 1288
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.01.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Appeal U/s 37 of Arbitration & Conciliation Act
1996 NO. 874 of 2023

Sushil Kumar Mishra ...Appellant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Appellant:
Sri Vinod Sinha, Sri Mahesh Sharma, Sri Sharad
Sinha

Counsel for the Opp. Parties:
S.C.

Civil Law - Arbitration and Conciliation
Act, 1996 - Section 34 - Instant appeal
preferred
by
claimant/award
holder
against order of District Judge whereby
appeal was partly allowed and rate of
interest
awarded
by
Arbitrator
was
reduced from 14% to 6% p.a - Held, it is
well settled by catena of Supreme Court
decisions that court has no power u/s 34
of Act, 1996 to modify award - Under
Section 34(2), court may only set aside
award, wholly or in part, if severable,
without affecting remaining award - In
Larsen Air Conditioning and Refrigeration
Co. (infra), Supreme Court held that
modification of rate of interest u/s 34 is
impermissible - Thus, rate of interest that
was awarded to be paid on principle sum
was 14% p.a from 25.3.2000 till payment
was made - In impugned order , rate of
interest reduced to 6% without providing
any cogent reasons for same - Reduction
of interest is nothing but modification of
original arbitration award, accordingly
same is illegal and against principles
established by Supreme Court. (Para 1, 7,
8)