# Udai Sengar v. State of U.P. & Anr

- **Citation:** (2020) 7 ILRA 348
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-27
- **Case number:** Application U/S 482 No. 3431 of 2020
- **Bench:** Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udai-sengar-v-state-of-u-p-anr-45894
- **Pages:** 6

## Headnote

Civil Law- Negotiable Instrument Act,
1881- Section 138 read with Criminal
Procedure
Court
-
Section
482
-
Dishonour of cheque - Summoning order
issued - Criminal Revision against order -
Allowed on the ground that complaint time
barred - Cause of action to prosecute arises
after laps of time period in proviso to section
138 of N.I. Act - As date of receipt omf notice
not mentioned in complaint therefore cause of
action arises after 45 days from the date of
legal notice was sent. Held - Complaint was well
within time - Revisional order set aside - Matter
remanded to be decided in the light of Apex
Court judgment within six months.

Application allowed. (E-2)

List of cases cited:-

## Text

348 INDIAN LAW REPORTS ALLAHABAD SERIES
This fact fully corroborates the prosecution
story. Needless to mention here that the
learned lower
revisional court while
allowing the revision dated 31.05.2019, has
directed the learned Magistrate to record
the deposition of all the witnesses and
accordingly, the statement of Youddhvir
Singh as PW-4 and Sushil Jain as PW-5
were penned down. It is contended that the
statements of these two persons surfaced
for the first time in second innings and
prior to that there was no whisper regarding
their presence over the site. No doubt that
for the offences triable by the Sessions, the
requirement of law is to summon all the
prosecution witnesses to examine in the
court. The presence of these witnesses
could be disputed during trial and this
ground is not sufficient to upset the
summoning order.

19. The learned A.G.A. again has
drawn the attention of the Court in the
judgment of ABHIJIT PAWAR VS.
HEMANT MADHUKAR NIMBALKAR
AND ANOTHER (2017) (3) SC, 528,
which too has toe the chain of earlier
judgments.
As
mentioned
above,
no
specific mode and manner is prescribed to
conduct the enquiry by the Magistrate. If
the Magistrate after holding this matter of
exercise is prima-facie satisfy that the
accused/applicants
are
committed
the
offence punishable U/s 323, 324, 307, 506
I.P.C. and for issuing summons U/s 204
Cr.P.C. and while doing so he has spelled
out
the
reasons
for
his
satisfaction/conclusion relying upon the
statements of the doctor. The prosecution
case, whereby the accused persons were
assailants who caused the lethal and
grievous injuries over the skull of the
injured, which could have caused his death,
if the timely treatment was not given. I find
that the learned Magistrate has achieved the
target and the order impugned is a well
reasoned order whereby he has spelled out
the
reasons
of
satisfaction,
which
corroborates the prosecution story. At the
stage of summoning he is not required to
give sound and detailed reason and the
depositions of thrashing each and every
prosecution witness in depth. In my
opinion,
the
learned
Magistrate
has
'enquired' into the matter as contemplated
in Section 202(1) Cr.P.C. and passed
sufficiently reasonable summoning order.
For
the
aforesaid
reasons
and
circumstances, the present 482 application
falls
flat
and
do
not
warrant
any
interference
U/s
482
Cr.P.C.
and
accordingly dismissed.

20. It is given to understand that the
applicants have not surrendered till date.
The applicants are directed to appear before
the court concerned on or before 30th July,
2020 and seek bail, during this period no
coercive action shall be taken against them
----------
(2020)07ILR A348
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.01.2020

BEFORE

THE HON'BLE MANJU RANI CHAUHAN, J.

Application U/S 482 No. 3431 of 2020

Udai Sengar ...Applicant
Versus

State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Yogendra Kumar Srivastava, Sri Jitendra
Kumar Rawat, Sri Himanshi Srivastava,
Smt. Anita Srivastava.

Counsel for the Opposite Parties:
7 All. Udai Sengar Vs. State of U.P. & Anr.
349
A.G.A.

Civil Law- Negotiable Instrument Act,
1881- Section 138 read with Criminal
Procedure
Court
-
Section
482
-
Dishonour of cheque - Summoning order
issued - Criminal Revision against order -
Allowed on the ground that complaint time
barred - Cause of action to prosecute arises
after laps of time period in proviso to section
138 of N.I. Act - As date of receipt omf notice
not mentioned in complaint therefore cause of
action arises after 45 days from the date of
legal notice was sent. Held - Complaint was well
within time - Revisional order set aside - Matter
remanded to be decided in the light of Apex
Court judgment within six months.

Application allowed. (E-2)

List of cases cited:-

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

2. Shakti Travels & Tours Vs St. of Bihar, (2002)
9 SCC 415.

3. Deepak Kumar & anr. Vs St. of U.P. & anr.,
2006 (8) ADJ 427.

(Delivered by Hon'ble Manju Rani Chauhan, J.)

1. Heard Sri Jitendra Kumar Rawat
holding brief of Sri Yogendra Kumar
Srivastava, learned counsel for the applicant,
Sri Amit Singh Chauhan, learned A.G.A. for
the State and perused the entire record.

2. This application under Section 482
Cr.P.C. has been filed with a prayer to
quash
the
impugned
order
dated
22.10.2019 passed by Additional District
& Sessions Judge, Court No.5, Etawah
passed in Criminal Revision No.18 of
2019 (Satyajeet Singh Bhadauria Vs. State
of U.P. & another), under Section 138 of
Negotiable Instrument Act (in short " N.I.
Act").

3. Brief facts of the case are that the
applicant has filed a complaint No.451 of 2017
on
10.08.2017
under
Section
138
of
Negotiable
Instrument
Act
against
the
opposite party no.2 stating therein that Rs.1 lac
was taken by opposite party no.2 from the
applicant (complainant) with the assurance
that the same will be returned in six months.
After expiry of the aforesaid period when the
demand was raised to return the said money, a
cheque no.269466 was issued on 11.05.2017
by the opposite party no.2 and when the
applicant presented the cheque for the
payment, the same was dishonored on account
of "insufficient fund" on 12.05.2017. The legal
notice was given on 03.06.2017 and when the
opposite party no.2 did not pay any dues, the
present complaint was filed.

4. Learned Judicial Magistrate vide order
dated 18.01.2018 summoned the opposite
party no.2 against which a Criminal Revision
No.18 of 2019 was preferred by the opposite
party no.2. The revisional court vide order
dated 22.10.2019 allowed the revision by
setting aside the order dated 18.01.2018 stating
therein that the complaint was time barred.

5. Learned counsel for the applicant
(complainant) states that Section 138 of
N.I. Act is a penal provision, it must,
therefore, be construed strictly. Section 138
(2) of N.I. Act enacting part of the
provision makes it abundantly clear that
what constitutes an offence punishable with
imprisonment and/or fine is the dishonour
of a cheque for insufficiency of funds, etc
in the account maintained by the drawer
with the bank for discharge of a debt or
other liability whether in full or part. The
language
used
in
the
provision
is
unambiguous and the ingredients of the
offence clearly discernible namely (a)
cheque is drawn by the accused on an
account maintained by him with a banker,
350 INDIAN LAW REPORTS ALLAHABAD SERIES
(b) the cheque amount is in discharge of a
debt or liability, and (c) the cheque is
returned unpaid for insufficiency of funds
or that the amount exceeds the arrangement
made with the bank. Any dishonour falling
within the four corners of the enacting
provision would be punishable.

6. Section 138 is arranged in two
parts, the primary and the provisory. The
contents of the proviso place conditions on
the operation of the main provision, while
it does not form a constituent of the crime
itself, it modulates or regulates the crime in
circumstances where, unless its provisions
are complied with, the already committed
crime remains impervious to prosecution.
Section 142 employs the term "cause of
action" as compliance with the three factors
contained in the proviso are essential for
the cognizance of the offence, even though
they are not part of the action constituting
the crime, therefore, so far as the offence
itself, proviso has no role to play.

7. The proviso that comprises the
second part of the provision, the following
would constitute "cause of action" referred
to in sub-clause (b) above:

(a)
The
complainant
has
presented the cheque for payment within
the period of six months from the date of
the issue thereof;

(b)
The
complainant
has
demanded the payment of the cheque
amount from the drawer by issuing a
written notice within thirty days of receipt
of information by him from the bank
regarding the dishonour;

(c) The drawer has failed to pay
the cheque amount within fifteen days of
the receipt of the notice.

8. From the above, it is clear that the
cause of action for prosecution will arise
only when the period stipulated in the
proviso elapses without payment.

9. It has been submitted by learned
counsel for the applicant that in the present
case the applicant (complainant) filed a
complaint on 10.08.2017 regarding cheque
no.267466
which
was
returned
on
12.05.2017 due to insufficient funds. On
03.06.2017 the legal notice was given by
the applicant to opposite party no.2 and
since the date of receipt of notice is not
mentioned in the complaint, therefore, as
per law laid down in the case of Yogendra
Pratap Singh Vs. Savitri Pandey &
Another, reported in 2014 (10) SCC 713,
the cause of action will arise after 45 days
of the date when the legal notice was sent.
Para 42 of the aforesaid judgment states as
follows :-

"42. Section 142 of the NI Act
prescribes the mode and so also the time
within which a complaint for an offence
under Section 138 of the NI Act can be
filed. A complaint made under Section 138
by the payee or the holder in due course of
the cheque has to be in writing and needs
to be made within one month from the date
on which the cause of action has arisen
under clause (c) of the proviso to Section
138. The period of one month under
Section 142(b) begins from the date on
which the cause of action has arisen under
clause (c) of the proviso to Section 138.
However, if the complainant satisfies the
Court that he had sufficient cause for not
making a complaint within the prescribed
period of one month, a complaint may be
taken by the Court after the prescribed
period. Now, since our answer to question
(i) is in the negative, we observe that the
payee or the holder in due course of the
7 All. Udai Sengar Vs. State of U.P. & Anr.
351
cheque may file a fresh complaint within
one month from the date of decision in the
criminal case and, in that event, delay in
filing the complaint will be treated as
having been condoned under the proviso to
clause (b) of Section 142 of the NI Act. This
direction shall be deemed to be applicable
to all such pending cases where the
complaint does not proceed further in view
of our answer to question (i). As we have
already held that a complaint filed before
the expiry of 15 days from the date of
receipt of notice issued under clause (c) of
the proviso to Section 138 is not
maintainable, the complainant cannot be
permitted to present the very same
complaint at any later stage. His remedy is
only to file a fresh complaint; and if the
same could not be filed within the time
prescribed under Section 142(b), his
recourse is to seek the benefit of the
proviso, satisfying the Court of sufficient
cause.
Question
(ii)
is
answered
accordingly."

10. Learned counsel for the applicant
has also relied upon the judgment of Apex
Court in the case of Shakti Travels & Tours
Vs. State of Bihar, 2002(9) SCC 415,
wherein
the
Apex
Court
has
very
categorically
held
that
complaint
is
maintainable under Section 138 of N.I. Act
only when it is filed after due service of
notice as contemplated under Section 138 of
N.I. Act. In another case of Deepak Kumar
and another Vs. State of U.P. and another,
2006 (8) ADJ 427, this court has very
categorically held that service of notice is
pre-condition to maintain a complaint under
Section 138 of N.I. Act. Considering in detail
meaning of effective service of notice
prescribed as pre-condition to maintain the
complaint, the Court vide para 9 and 10 held
thus :-

"9. Pondering over the rival
contentions, I find that there is substance in
the submissions raised by the counsel for the
applicant. As a fact, neither in the complaint,
nor in statement under Section 200, Cr. P.C.
nor in the counter-affidavit any date of
service on notice demanding repayment of
cheque money from the applicants is
mentioned. No document was also appended
along with the complaint so as to indicate the
said date. Even during the course of
argument, the counsel for the respondentcomplainant could not point out the date of
service of such notice. Thus, in the total
absence of date of service of notice
demanding payment of the cheque amount,
no offence is made out against the applicants.
Moreover, it cannot be said that any such
notice was ever served on the applicants and
consequently fifteen days period for making
the payment of the cheque money cannot be
counted and unless that is done no offence is
made out against the applicants. The
contention of respondent-complainant that
the service is to be presumed as also cannot
be accepted because Section 27 of General
Clauses Act does not take into its purview
service by private courier. For a proper
understanding of this submission Section 27
of the General Clauses Act is quoted below:--

"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
352 INDIAN LAW REPORTS ALLAHABAD SERIES
the time at which the letter would be
delivered in the ordinary course of post."

10. Thus, the wordings of Section
27 of the General Clauses Act clearly
indicates that this section deals only with
service by ''Post' and that too "registered
service"
when
such
a
service
is
contemplated by the Act itself. Attour. no
other mode of service is embraced in
Section 27. The condition precedent for the
applicability of this section are firstly, that
the service must be provided by the Act
itself and secondly, that such "service shall
be deemed to be affected by properly
addressing, pre-paying and posting by
registered post" (Emphasis mine). Unless
the twin conditions are satisfied Section 27
of the General Clauses Act will not apply.
In the present case the second condition is
not satisfied and therefore the service of
notice on the applicants cannot be
presumed. Since the legislature has kept
service by private courier outside the
purview of the Section 27 of the General
Clauses Act, therefore the Courts cannot
implant such presumption of service into
that section and rightly so because private
courier
services
are
privately
run
businesses without any authenticity of
service. (Emphasis mine) consequently, the
contention of the learned counsel for the
applicant that the service should be
presumed in the present case cannot be
accepted as it does not hold good on the
provision of the statute itself and has to be
rejected. Resultantly, the submission of the
counsel for the applicant that in the present
case no offence is made out holds good and
deserves to be accepted and I hold so."

Countering the argument, learned
counsel for opposite party no.2 has
submitted that condition of service of notice
virtually stands complied with in view of
the fact that the postal letter which was
sent had come back with note "left",
meaning
thereby
service
was
made
effective. He further contends that the
applicant having provided two different
addresses, main address being of the firm
and notice could have been sent only on
that address, therefore, if the postmand
could not meet the applicant on the said
address, it cannot be said service has not
been effected upon. Learned counsel for the
opposite party no. 2 has further relied upon
the judgment of Single Judge of this Court
in the case of Chand Mohd v. State of U.P,
Laws (All) 2017 5 308, in which this Court
vide paragraphs 19 and 20 has held thus:

19. Perusal of Section 27 of the
General Clauses Act, as aforequoted
clearly
indicates
that
there
is
a
presumption of service by registered post.
The provisions of the aforesaid Section 27
of the Act regarding presumption of service
has been interpreted by Hon'ble Supreme
Court and it has been held that there is a
rebuttable presumption of service by
registered post. Reference in this regard
may be had to the judgment of Hon'ble
Supreme Court in the case of Gujarat
Electricity Board v. Atmaram Sungomal
Poshani12; Commissioner of Income Tax
(Adm.), Bengal v. V.K. Gururaj and Ors.13,
State of U.P. v. T.P. Lal Srivastava14;
Adavala Suthaiah and Ors. Special Deputy
Collector, Land Acquisition and Ors.
Anr.15 and Shimla Development Authority
and Ors. v. Santosh Sharma (Smt.) and
Anr., (1997) 2 SCC 637.

20. It has also been well settled
by Hon'ble Supreme Court that when notice
is sent at the correct address by registered
post and neither acknowledgment nor
undelivered registered cover is received
back then there is presumption of service
7 All. Sachin Dahiya & Ors. Vs. State of U.P. & Anr.
353
although rebuttable. The burden to rebut
presumption lies on the party challenging
the factum of service. Reference in this
regard may be had to the judgments of
Hon'ble Supreme Court in the case of
Indian Bank v. Datla Venkata Chinna
Krishnam Raju; Ram Chandra Verma v.
Jagat Singh Singhi and others; ATTABIRA
Regulated Market Committee v. Ganesh
Rice Mills; Union of India v. Ujagar Lal;
C.C. Alavi Haji v. Palapetty Muhammed
(Paras 10 & 15 ) and Sunil Kumar
Shambhudayal Gupta (DR) and others v.
State of Maharashtra (Paras 53 to 56).

11. Countering the argument, learned
A.G.A. for the State has submitted that
condition of service of notice virtually
stands complied with in view of the fact
that the postal letter which was sent and
had come back with note "left", meaning
thereby service was made effective.

12. Banking upon the judgment,
learned counsel for the applicant submits
that
the
complaint
was
ultimately
maintainable and it cannot be said that
mandatory requirement of law was not
fulfilled.

13. Having heard the arguments
advanced by both the parties, I find that the
complaint was well within time taking into
consideration the judgment of Yogendra
Pratap Singh (supra). Therefore, the
revisional order dated 22.10.2019 is set
aside. The matter is remitted back to the
court concerned to decide the same afresh
by passing a speaking and reasoned order
in accordance with law in the light of the
judgment of Apex Court in the case of
Yogendra Pratap Singh (supra) within a
period of six months from the date of
production of certified copy of this order.

14. The application stands allowed.
----------
(2020)07ILR A353
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.02.2020

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Application U/S 482 No. 4191 of 2020

Sachin Dahiya & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Naveen Tiwari, Sti Prashant Manchand,
Sri Prshant Vikram Singh

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Sections 202, 482 -
Challenge to summoning order - Challenge
to summoning order- Territorial jurisdiction -
No enquiry / investigation under section 202 by
Magistrate before passing summoning order -
Order is also non-speaking and does not reflect
application of mind - Impugned order quashed
- Matter remanded for fresh consideration denovo.

Application disposed of. (E-2)

List of cases cited:-

1. Vijay Dhanuka & ors. Vs Najima Mamtaj &
ors., (2014) 14 SCC, 638.

2. Abhijit Pawar Vs Hemant Madhukar Nimalkar
(2017) III SCC, 528.
3. Mahmood- Ul-Rehman Vs Khazir Mohd Tunda
(Para 20 and 22) (2016) 1 SCC (Crl) 124.

4. Vinay Kumar @ Kallu & anr. Vs St. Of U.P. &
anr. in Criminal Misc. Application (482) No.
23895/2018.