The main legal point established in the judgment is the presumption of service under Section 27 of the General Clause Act and Section 114 of the Evidence Act in cases of service of notice under the Negotiable Instruments Act.

JUDGMENT :

1. Heard learned counsel for the applicant and Sri Padmakar Rai, learned AGA for the State.

2. The present application u/s 482 Cr.P.C. has been filed to quash the summoning order dated 09.11.2022 as well as the entire proceedings of Complaint Case No.3721 of 2022 (Shiv Prakash Tiwari Vs. Rajendra), under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act, 1881'), Police Station-Nagirabad, District-Kanpur Nagar, pending in the court of learned Metropolitan Magistrate, VIII, Kanpur Nagar.

3. The learned counsel for the applicant contends that the impugned complaint is itself defective as the same was filed before the expiration of 15 days from the date of service of notice. It is further contended by learned counsel for the applicant that after bouncing the cheque on 13.07.2022, legal notice was sent to the applicant by the opposite party no.2 on 23.07.2022 and, thereafter, without mentioning any date for service of notice, the complaint was filed on 31.08.2022. It is further contended by learned counsel for the applicant that in the absence of any date of service mentioned in the complaint, the presumption of 30 days under Section 27 of the General Clauses Act, 1977, should come into play, and it should have been filed after 45 days of sending a notice. In support of his contention, learned counsel for the applicant has relied upon the judgment of the co-ordinate Bench of this Court passed in Application u/s 482 No.98 of 2020 (Ali Jan Vs. State of U.P. and Another) vide order dated 31.01.2020 and another judgment of the co-ordinate Bench of this court in Application u/s 482 No.29097 of 2023 (Santosh Kumar Shrivastava Vs. State of U.P. and Another) vide order dated 21.08.2023. Learned counsel for the applicant has also relied upon the judgment of Yogendra Pratap Singh Vs. Savitri Pandey & Anothers reported in 2014 (10) SCC 713, as well as the judgment of Jharkhand High Court in Criminal Revision No.827 of 2012 (Manoj Kumar Nag Vs. State of Jharkhand & Another) vide order dated 16.07.2021. Lastly, it was contended by learned Counsel for the applicant that in the above judgment, it is clear that if the complaint is filed before the expiry of 15 days from the date of service of notice, then that is no complaint in the eyes of the law.

4. Per contra, learned AGA has contended that it is an established legal position of law that date of service of notice sent by the complainant upon the drawer of the cheque is not required to be mentioned in the complaint and the defence whether notice has been served or not upon the drawer of the cheque can be considered during the trial, and that cannot be a case for quashing the proceeding of a complaint under the Act of 1881.

5. After hearing the parties, the following questions arise for consideration;

i. Whether the impugned complaint is defective under Clause (c) of the proviso to Section 138 of the Negotiable Instrument Act, being filed before the expiry of Fifteen days from the date of service of notice.?

ii. Whether the law requires to mention the date of service of notice upon drawer in the complaint filed against him under Section 138 N.I. Act ?

6. from the perusal of the record, it appears that after the bouncing of the cheque on 13.07.2022 legal notice was sent by opposite party no.2 through registered post on 23.07.2022, though no date of service was mentioned in the complaint, and the same was filed on 31.08.2022.

7. Hon'ble Apex Court in C.C. Alavi Haji vs Palapetty Muhammed and another; 2007 (6) SCC 555 observed that in case of notice through registered post on the correct address of the drawer, the presumption of service upon drawer can be made under Section 27 of General Clause Act by taking into consideration the time for service of notice in the ordinary course of business. The Hon'ble Apex Court further observed that in that case, apart from the Section 27 of General Clause Act presumption under Section 114 of Evidence Act is available t