# Top Filling Point Proprietor Rakesh Agarwal, Rampur v. State of U.P. & Anr

- **Citation:** (2023) 11 ILRA 811
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-13
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/top-filling-point-proprietor-rakesh-agarwal-rampur-v-state-of-u-p-anr-49418
- **Pages:** 5

## Headnote

Civil Law - Negotiable Instruments Act,
1881 - Section 138 - Against Summoning
Order - Code of Criminal Procedure, 1973 -
Section 200 - Complainant filed case
under
Section
138
of
Negotiable
Instruments
Act,
producing
evidence
under
Section
200
Cr.P.C.,
including
cheque for ₹2,75,000 which was returned
by Bank with remark "funds insufficient,"
return memo and demand notice - Trial
court summoned accused, revisional court
upheld order, dismissing revision - From
perusal of order, it is noticed that
revisional court observed absence of
specific date regarding service of demand
notice but found from track consignment,
paper on record which belied revisionist's
contention - Thus trial court appears to
have presumed service of demand notice -
Even if track consignment report is not
filed, court may presume notice was
shown to have been sent by registered
post to correct address in ordinary course
of business. (Para 3, 6, 10)

Petition dismissed. (E-13)

List of Cases cited:

## Text

11 All. Top Filling Point Proprietor Rakesh Agarwal, Rampur Vs. State of U.P. & Anr.
811

21. According to this Court, the
petition is devoid of merit and has been
filed with ulterior motive only to deny the
justice to the respondent no.2 and not to
take legal recourse provided to him under
the law. The remedy is very much open for
the petitioners to move an application for
discharge at the time of framing of charge
or at the time of recording of statement as
the case may be. Thus, the petition is liable
to be dismissed accordingly.

O R D E R

22. The petition is dismissed
accordingly. The summoning order and the
order passed by the revisional court are
affirmed.
----------
(2023) 11 ILRA 811
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.10.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters Under Article 227 No. 7011 of
2023(Civil)

Top
Filling
Point
Proprietor
Rakesh
Agarwal, Rampur ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Amrendra Nath Rai, Sri Sanjay Singh

Counsel for the Respondents:
G.A., Sri Abhishek Tiwari, Sri Mahendra
Pratap Singh, Sri Rohit Singh, Sri Devesh
Singh

Civil Law - Negotiable Instruments Act,
1881 - Section 138 - Against Summoning
Order - Code of Criminal Procedure, 1973 -
Section 200 - Complainant filed case
under
Section
138
of
Negotiable
Instruments
Act,
producing
evidence
under
Section
200
Cr.P.C.,
including
cheque for ₹2,75,000 which was returned
by Bank with remark "funds insufficient,"
return memo and demand notice - Trial
court summoned accused, revisional court
upheld order, dismissing revision - From
perusal of order, it is noticed that
revisional court observed absence of
specific date regarding service of demand
notice but found from track consignment,
paper on record which belied revisionist's
contention - Thus trial court appears to
have presumed service of demand notice -
Even if track consignment report is not
filed, court may presume notice was
shown to have been sent by registered
post to correct address in ordinary course
of business. (Para 3, 6, 10)

Petition dismissed. (E-13)

List of Cases cited:

1. Deepak Kumar & anr. Vs St. of U.P. & anr.;
2007 (2) Civil Court Cases 467 (Allahabad) (Para
7)

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

3. Ajeet Seeds Limited Vs K. Gopala Krishnaiah;
(2014) 12 SCC 685

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

1. Heard Sri Sanajy Singh, learned
counsel for the petitioner, Sri Mahendra
Pratap
Singh,
learned
counsel
for
respondent no. 2 and learned AGA for the
State.

2. This petition under Article 227 of
the Constitution has been filed with a
prayer to set aside the order dated
19.07.2022, whereby the petitioner was
summoned under section 138 of the
812 INDIAN LAW REPORTS ALLAHABAD SERIES
Negotiable Instruments Act, 1881 in
complaint case no. 80 of 2019 and the order
dated 01.06.2023 passed by the revisional
court in Criminal Revision No. 305 of
2022, by which the summoning order was
affirmed.

3. The relevant facts are as below:-

The
complainant
filed
a
complaint case under section 138 of the
Negotiable
Instruments
Act,
1881
(hereinafter referred to as "the NI Act")
against the accused. He produced evidence
under section 200 Cr.P.C. and also papers.
The learned court below heard the
complainant and summoned the accused
under section 138 of the NI Act. The papers
which were produced included a cheque of
Rs. 2,75,000/-, which was returned by the
Bank on 02.04.2019 with a remark of
"funds insufficient", the return memo and
the demand notice dated 22.02.2019. The
revisional court agreed with the order of
the trial court and dismissed the revision.

4. The main contention of the
petitioner is that the complainant could not
show, by producing any evidence that in
fact the notice was served on him,
therefore, the essential condition for taking
cognizance, as provided under section 138
clause (c) read with section 142(1)(b) of the
NI Act was not fulfilled.

5. The contention of the respondent is
that though there is no mention of the
date on which the demand notice was
actually received by the accused in the
order passed by the learned trial court,
however, the revisional court referred to
the track consignment report of the
Postal Department (paper no. 9Ka/2),
hence the order of the trial court cannot
be faulted.

6. From perusal of the order passed in
revision, it is noticed that the the learned
court of revision took up the above
contention and observed that indeed there
was no mention of any specific date, as
regard service of demand notice, however it
was
found
that
there
was
track
consignment, paper on record, which belied
the submission of the revisionist.

7. The petitioner has referred to 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
judgment. 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 said that in the event
of absence of any of the 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
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
11 All. Top Filling Point Proprietor Rakesh Agarwal, Rampur Vs. State of U.P. & Anr.
813
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 timebarred). 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."

8. 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. The day of receipt of demand notice
can very well be inferred from the
documents/evidence on record.

9. The petitioner also 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.). 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
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
814 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

10. In the instant case the trial court
seems to have drawn a presumption of
law as regard service of demand notice.
In my opinion, even if the track
consignment report is not filed, the court
may presume service of notice in
ordinary course of business, if it was
shown that the same was sent by
registered post on correct address.

11. In view of the above, I do not
find any infirmity, illegality or irregularity
in the summoning order dated 19.07.2022
as well as the order dated 01.06.2023.
11 All. Smt. Pancho Devi @ Madhvi Vs. State of U.P. & Ors.
815
Therefore, the petition lacks merit and is
hereby dismissed.
----------
(2023) 11 ILRA 815
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 661 of 2014

Smt. Pancho Devi @ Madhvi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rakesh Kumar, Sri Manoj Yadav, Sri
Rajendra Kumar Srivastava, Sri Rajesh
Kumar, Sri Sanjeev Kumar Pandey, Sri
Shashi Dhar Pandey

Counsel for the Respondents:
C.S.C., SriManish Goyal, Sri S.P. Singh, Ms.
Bushra Mariyam

A. Service Law - UP State District Court
Service Rules, 2013 - Rule 3(3) & 4 - UP
Subordinate
Civil
Courts
Inferior
Establishment
Rules,
1955
-
Compassionate
appointment
-
Qualification - After employee's death on
22.03.2011,
widow's
claim
for
compassionate appointment was rejected
vide
order
dated
10.05.2011
against
which writ was allowed remanding the
matter for fresh decision - Again widow's
application was rejected on 03.09.2013 on
the ground of not possessing minimum
qualification of Class VI as required under
Rules,
2013
coming
in
force
on
04.07.2013
-
Validity
challenged
-
Applicability of the Rule of 2013 - Held,
right to consideration of an appointee for
compassionate
appointment
is
to
be
governed by the rules in force on the date
of death of the employee in harness - If
the petitioner's application had been
examined in the correct perspective by the
learned District Judge, when it was first
rejected vide order dated 10.05.2011, an
order that did not find favour with this
Court, the result would have certainly
been different. (Para 8, 12, 18 and 20)
B. Interpretation of statute - Applicability
of Rule - Determinate and fixed criteria or
indeterminate and variable criteria -
Dependability
-
Bheemesh
alias
Bheemappa's case relied upon - Held,
interpretation as to the applicability of a
modified Scheme should depend only
upon a determinate and fixed criteria such
as
the
date
of
death
and
not
an
indeterminate and variable factor. (Para
17 and 18)
Writ petition allowed. (E-1)
List of Cases cited:
1. MGB Gramin Bank Vs Chakrawarti Singh;
(2014) 13 SCC 583
2. Secretary to Government Department of
Education (Primary) & ors. Vs Bheemesh @
Bheemappa; AIR 2022 SC 402

(Delivered by Hon'ble J.J. Munir, J.)

This writ petition is directed against
the order dated 03.09.2013, passed by the
District Judge of Firozabad, bearing
Administrative Order No. 90 of 2013,
rejecting
the
petitioner's
claim
for
compassionate appointment.

2. The petitioner's husband, the late
Mahadev Prasad, was a permanent ClassIV employee in the establishment of the
District Court, Firozabad. He met with an
accident on 22.03.2011 and died the same
day, still in harness. After her husband's
demise, the petitioner moved an application
before
the
learned
District
Judge,
Firozabad,
seeking
compassionate
appointment under the Uttar Pradesh
Recruitment of Dependants of Government