IMPORTANT POINT
Service of notice is a matter of evidence and proof and it would be premature at the stage of issuance of process to move the High Court for quashing of the proceeding under Section 482 of the Cr.P.C.

Mrs. Ranjana Prakash Desai, J.—Leave granted.

2. The appellant is the complainant. He has challenged the judgment and order dated 21/03/2013 passed by the High Court of Judicature of Bombay, Bench at Aurangabad in Criminal Writ Petition No.1131 of 2012 whereby the High Court has quashed the complaint filed by him under Section 138 of the Negotiable Instruments Act, 1881 (‘the NI Act’) being SCC No. 4118 of 2007 in the court of Chief Judicial Magistrate, First Class, Aurangabad.

3. For the purpose of disposal of this appeal, it is not necessary to narrate all the facts of the case. Suffice it to say that the complaint was filed alleging that the cheque issued by the respondent-accused for repayment of a legally recoverable debt bounced. On 17/6/2011 learned Magistrate issued process. The respondent-accused filed a criminal revision application before the Additional Sessions Judge, Aurangabad mainly on the assertion that the demand notice was not served on him. The said criminal revision application was rejected. Being aggrieved by the said order, the respondent-accused filed criminal writ petition in the High Court under Section 482 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’). The High Court quashed the complaint on a short ground that on reading verification of the complaint dated 17/6/2011, it is explicit that there are no recitals to demonstrate that the notice issued under Section 138 of the NI Act by the complainant was served upon the respondent-accused on any specific date. The High Court observed that there is no proof that either the notice was served or it was returned unserved/unclaimed and that there is no averment in the complaint about the same. The High Court concluded that, therefore, there could not be a cause of action to prosecute the accused under Section 138 of the NI Act. For coming to this conclusion, the High Court relied on the order of this Court in Shakti Travel & Tours v. State of Bihar & Anr., (2000) 9 SCC 415. The extract on which the High Court relied upon could be quoted :

“2. The accused who is the appellant, assails the order of the High Court refusing to quash the complaint filed under Section 138 of the Negotiable Instruments Act. The only ground on which the learned counsel for the appellant prays for quashing of the complaint is that on the assertions made in paragraph 8 of the complaint, it must be held that notice has not been served and, therefore, an application under Section 138 could not have been maintained. Undoubtedly, the accused has a right to pay the money within 15 days from the date of the service of notice and only when it fails to pay, is it open for the complainant to file a case under Section 138 of the Negotiable Instruments Act. That being the position and in the complaint itself having not been mentioned that the notice has been served, on the assertions made in para 8, the complainant itself is not maintainable. We accordingly quash the complaint.”

4. We have heard, at some length, Mr. S.S. Choudhari, learned counsel appearing for the appellant. Counsel submitted that the High Court has erred in quashing the complaint on the ground that complaint is silent about service of notice. Counsel submitted that in C.C. Alavi Haji v . Palapetty Muhammed & Anr., (2007) 6 SCC 555. a three Judge Bench of this Court has conclusively decided this issue. It is held in this case that it is not necessary to aver in the complaint that notice was served upon the accused. The impugned order, therefore, deserves to be set aside.

5. We are inclined to agree with the counsel for the appellant.

6. In C.C. Alavi Haji, a three-Judge Bench of this Court was dealing with the question referred by a two-Judge Bench for consideration. The referring Bench was of the view that in D. Vinod Shivappa v. Nanda Belliappa, (2006) 6 SCC 456.this Court did not take note of Section 114 of the Evidence Act in its proper perspective. It felt that presumption under Section 114 of the Evidence A