The main legal point established is the presumption of service of notice when sent through registered post, as provided under section 27 of the General Clauses Act.

JUDGMENT :

1. Heard Sri Saroj Kumar Yadav, learned counsel for the petitioner, Sri Chandan Kumar Mishra, Advocate holding brief for Sri Gyanendra Prakash Srivastava, learned counsel for the respondent.

2. By means of this petition, the petitioner has challenged the order dated 10.12.2020 passed by the Court of Metropolitan Magistrate, Kanpur Nagar in complaint case no. 82 of 2020 (Ritesh Kumar Singh vs. Panki Indane Gas Service through Prashant Chaudhary) filed under section 138 of the Negotiable Instruments Act, 1881, whereby the petitioner was summoned to face trial for an offence under section 138 of the Negotiable Instruments Act and also the order dated 20.01.2023 passed in Criminal Revision No. 29 of 2023 (Panki Indane Gas Service through Prashant Chaudhary vs. Ritesh Kumar Singh and Another), whereby the order of the trial court was affirmed.

3. The relevant facts are as below:-

The respondent-Ritesh Kumar Singh filed a complaint under section 138 read with section 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the N.I. Act"), with the allegation that during business transactions between the two sides, an amount of Rs.12,50,000/- became due on him. As part payment thereof, the opposite party issued a cheque. The cheque was returned to the complainant without encashment with the remark that 'Debit not Allowed". The complainant, therefore, issued a demand notice within time by registered post. The opposite party did not repay the amount within 15 days of its service, therefore, he filed a complaint.

4. The submission of the petitioner is that there is nothing to suggest that demand notice was served on him, therefore, the essential ingredients for taking cognizance under section 138 of the N.I. Act were missing. It is further submitted that the amount, which fell due on him, was already paid by him, therefore, the summoning order is bad in law.

5. I went through the complaint, other papers which include a copy of the cheque, a copy of return memo given by the Bank and a copy of the notice. From the papers on record, it is revealed that cheque was dishonored on 07.11.2019. Notice was sent on 19.11.2019 through registered post and that no payment was made till 07.11.2019. The complaint was filed on 03.01.2020. The learned trial court, on the basis of the above, passed the order of summoning.

6. I also went through the order of the revisional court. The contentions which have been raised before this court were also raised before the revisional court. The revisional court dealt with each one of the objections/contentions raised by the revisionist and gave findings in para nos. 8, 9, 10 and 11 of the order. Learned revisional court observed that when a registered notice has been sent, there shall be a presumption, unless otherwise shown, that the notice was served in usual course. The revisional court referred to the judgment of Supreme Court in C.C. Alavi Haji vs. Palapetty Muhammed, (2007) 6 SCC 555.

7. The only point which has been specifically and vehemently pressed before this court is that it was nowhere written in the complaint as to when the notice was served on the accused. It is further argued that no evidence has been given to demonstrate that notice was served on a particular date. The contention is that where no particular date of service of notice has been disclosed, the time period of 15 days cannot be presumed to run from some unknown day and therefore the cognizance could not be taken.

8. The petitioner has 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.) and 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 judgments. 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