The court established that the date of receipt of notice is important, but it is not necessary for a particular date to be mentioned in the complaint itself. It also emphasized the presumptions under Section 114 of the Evidence Act and Section 27 of the General Clauses Act regarding the delivery and service of notice.

JUDGMENT :

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 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 action" to life, in case the cheque 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