Judicial Analysis Court Copy Headnote Facts Arguments Court observation

IN THE HIGH COURT OF ALLAHABAD
Raj Beer Singh, J.
Sultan Alam – Applicant
Versus
State of U.P. and Another – Opposite Parties
Application U/S 482 No. 5743 of 2021
Decided On : 06-06-2022

Advocates:
Advocate Appeared:
For the Applicant : Hemant Kumar, Pradeep Kumar Keshri
For the Opposite Party : Vishal Shukla, Vivek Kumar Singh

The main legal point established in the judgment is that the factum of disputed service of notice requires adjudication on the basis of evidence and can only be done and appreciated by the trial court.

Headnote:
N.I. Act - Quashing of Order - Section 138 of Negotiable Instruments Act - [Section 138 of N.I. Act] - The court discussed the legal provisions of Section 138 of the Negotiable Instruments Act and its interpretation in relation to the service of notice. The court highlighted the presumption of service of notice under Section 27 of the General Clauses Act and emphasized that it is not necessary to aver in the complaint that the notice was served. The court also emphasized that the factum of disputed service of notice requires adjudication on the basis of evidence and can only be done and appreciated by the trial court. The court's decision was influenced by the legal principles established in the cases of Ajeet Seeds Ltd., C.C. Alavi Haji, Anil Kumar Goel, and Ali Jan.
Fact of the Case:
The applicant filed an application under Section 482 Cr.P.C. to quash the order passed by the Sessions Judge in a case related to Section 138 of the Negotiable Instruments Act. The applicant argued that the impugned order was against facts and law, emphasizing the service of notice upon the opposite party.
Finding of the Court:
The court found that the summoning order passed by the trial court was quashed by the Sessions Judge based on the absence of a specific date of service of demand notice in the complaint. The court emphasized that the factum of disputed service of notice requires adjudication on the basis of evidence and can only be done and appreciated by the trial court.
Issues: The issues revolved around the validity of the impugned order, the service of notice, and the interpretation of legal provisions under Section 138 of the Negotiable Instruments Act.
Ratio Decidendi: The court emphasized that it is not necessary to aver in the complaint that the notice was served and highlighted the presumption of service of notice under Section 27 of the General Clauses Act. The court also emphasized that the factum of disputed service of notice requires adjudication on the basis of evidence and can only be done and appreciated by the trial court.
Final Decision: The impugned order was set aside, and the summoning order passed by the trial court was restored. The trial court was directed to proceed and decide the matter in accordance with law.

JUDGMENT :

1. Heard learned counsel for the applicant, learned counsel for opposite party no. 2, learned A.G.A. for the State and perused the record.

2. This application under Section 482 Cr.P.C. has been filed with the prayer to quash the order dated 03.11.2020, passed by the learned Sessions Judge, Meerut in criminal revision no. 139 of 2020, (M. Kamal v. State of U.P. And Another), under Section 138 of Negotiable Instruments Act (hereinafter referred to as ‘N.I. Act’), police station Kotwali, district Meerut.

3. It has been argued by learned counsel for the applicant that the impugned order is against facts and law and thus, liable to be set aside. It was submitted that opposite party no. 2 has issued a cheque of Rs. 11 lacs in favour of applicant, which was presented in bank for encashment but it was dishonoured on 05.08.2015. The applicant has issued demand notice to opposite party no. 2 on 24.08.2015 at his last given address but it was returned back with endorsement dated 02.09.2015 to the effect that despite going for several times, opposite party no. 2 is not available at the given address. Thereafter, the applicant has filed a complaint under Section 138 of N.I. Act on 29.09.2015 and after applying the due procedure of law, the opposite party no. 2 was summoned by the court of Additional Chief Judicial Magistrate, Court no. 1, Meerut vide order dated 27.11.2015. It was further submitted that the said order dated 27.11.2015 was challenged by opposite party no. 2 by filing a criminal revision no. 139 of 2020 and the said revision was allowed by the court of Sessions Judge, Meerut vide impugned order dated 03.11.2020. Learned counsel submitted that in view of the report of postal department that despite going at the last given address of opposite party no. 2 for several times, the addressee is not available at the said address, it shall be deemed that notice has been duly served upon opposite party no. 2 and thus, the observation of the learned revisional court, that the presumption under Section 27 of General Clauses Act read with Section 139 of N.I. Act stands rebutted, is against law. Learned counsel submitted that the learned revisional court fell in error by disputing the service of notice upon opposite party no. 2. Further, the fact whether the said notice was duly served upon opposite party no. 2 or not, has to be examined by the trial court during trial. Opposite party no. 2 was summoned by the trial court after considering all the relevant facts and material on record. Learned counsel submitted that impugned order is against facts and law and thus, liable to be set aside. In support of his contentions, learned counsel has placed reliance upon the following case laws:-

(i) C.C. Alavi Haji v. Palapetty Muhammed And Ors., 2007(3) ACR 2738(SC)

(ii) Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, 2014(3) ACR 2763 (SC)

(iii) Anil Kumar Goel v. State of U.P. And Another, (Application u/s 482 Cr.P.C. No. 14190 of 2014, decided on 07.06.2021)

4. Learned counsel for opposite party No. 2 has opposed the application and argued that there was no valid service of demand notice upon opposite party no. 2 and that even it was not specified in the complaint that when the cause of action arose and thus, the complaint of applicant was not maintainable and that the summoning order was rightly set aside by the learned revisional court. It was submitted that in fact regarding the dispute, applicant has filed two separate cases. Besides the present complaint under Section 138 of N.I. Act, the applicant has also filed another complaint under Section 420 IPC and in that matter also, the summoning order of the said case under Section 420 IPC was set aside by the learned revisional court and against the order of learned revisional court, the application under Section 482 Cr.P.C. of applicant has already been dismissed by the High Court. Learned counsel further submitted that service of notice upon opposite party no. 2 was a necessary condition for fil