Neutral Citation No. - 2025:AHC:141232 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 9485 of 2025 Applicant :- Sevalal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sandeep Pandey Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Shri Sandeep Pandey, learned counsel for the applicant and learned AGA for the State. 2. This application under Section 528 BNSS has been filed by the applicant to quash the impugned summoning order dated 03.01.2025 passed by Additional Civil Judge Junior Division- II/Judicial Magistrate, Kaushambi in Complaint Case No.613 of 2022 (Dharm Singh Patel Vs. Sevalal), under Section 138 N.Ι. Act, Police Station- Charwa, District- Kaushambi. 3. Learned counsel for the applicant submits that on 31.10.2022, a complaint stood lodged by the opposite party no. 2 with an allegation that with respect to discharge of a liability a cheque bearing No. 903800 of an amount of Rs. 5 lakhs dated 02.09.2022 was drawn by the applicant in favour of the opposite party no. 2 which on presentation in the bank, which came to be dishonoured, communication whereof was made on 07.09.2022 to the opposite party no. 2 thereafter a statutory demand notice was issued on 20.09.2022. However, it is alleged that the applicant with the connivance with the post-man got the said notice returned on several occasions and the complaint stood followed on 31.10.2022 and the applicant came to be summoned under Section 138 of the N.I. Act on 03.01.2025. 4. Learned counsel for the applicant submits that the summoning order cannot be sustained for the simple reason that the statutory demand notice issued on 20.09.2022 as at no point of time being served and he while while inviting attention in para-2 of the supplementary affidavit has submitted that there is no online consignment details of the said consignment no. RU56519640IN. He submits that information has been sought with respect to the consignment details but nothing has been furnished till date. 5. Learned AGA has opposed the application while contending that once the cheque had been drawn then there happens to be a statutory presumption under Section 139 of the Act would be there. 6. I have heard learned counsel for the parties and gone through the records carefully. 7. The sole question which arises for determination in the present proceedings is to the extent of judicial intervention. Apparently, with respect to dishonour of a cheque of Rs. 5 lakhs, a statutory demand notice is alleged to have been issued on 20.09.2022 is further alleged to have been returned in connivance of the applicant with the postman. The question whether the demand notice was actually served or not is a question of trial as suffice would be that a clear recital is there regarding issuing of the statutory demand notice. 8. The Hon'ble Apex Court in the case of Ajeet Seeds Ltd. Vs. K. Gopala Krishnaiah, (2014) 12 SCC 685, in paragraph-10 and 11 has held as under: - "10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. 11. Applying the above conclusions to the facts of this case, it must be held that the High Court clearly erred in quashing the complaint on the ground that there was no recital in the complaint that the notice under Section 138 of the NI Act was served upon the accused. The High Court also erred in quashing the complaint on the ground that there was no proof either that the notice was served or it was returned unserved/unclaimed. That is a matter of evidence. We must mention that in C.C. Alavi Haji, this Court did not deviate from the view taken in Vinod Shivappa, but reiterated the view expressed therein with certain clarification. We have already quoted the relevant paragraphs from Vinod Shivappa where this Court has held that 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. These observations are squarely attracted to the present case. The High Court?s reliance on an order passed by a two-Judge Bench in Shakti Travel & Tours is misplaced. The order in Shakti Travel & Tours does not give any idea about the factual matrix of that case. It does not advert to rival submissions. It cannot be said therefore that it lays down any law. In any case in C.C. Alavi Haji, to which we have made a reference, the three- Judge Bench has conclusively decided the issue. In our opinion, the judgment of the two-Judge Bench in Shakti Travel & Tours does not hold the field any more." 9. Accordingly, the interference is declined, the application stands disposed of. 10. Leaving it open to the applicant to raise legal and factual grounds while contesting the trial. Order Date :- 19.8.2025 A. Prajapati Digitally signed by :- ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad