Neutral Citation No. - 2025:AHC:82791 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 17524 of 2025 Applicant :- Mohd. Sharfuddin Opposite Party :- State of U.P. and Another Counsel for Applicant :- Narendra Kumar,Suman Kumar Yadav Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Dr. Suman Kumar Yadav, learned counsel for the applicant as well as Sri Moti Lal, learned AGA for the State/opposite party no.1. 2. This application under Section 528 of the BNSS has been filed by the applicant to quash the entire proceedings of Complaint Case No.7602 of 2024 (Old Complaint Case No.5303/2023), (Abul Kaish Vs. Mohd. Sharfuddin), under Section 138 of the N.I. Act, Police Station Kotwali, District Azamgarh. 3. The case of the applicant is that a complaint was lodged by the opposite party no.2 on 29.11.2023 under Section 138 of the N.I. Act, with an allegation that the cheque dated 16.10.2023 bearing no.000191 of Rs.3,50,000/- was presented in the bank on 20.10.2023, it was dishonoured and a statutory notice was issued on 7.11.2023 and the complaint has been filed on 19.11.2023 and the applicant has been summoned on 28.5.2024. 4. Learned counsel for the applicant has been submitted that summoning order cannot be sustained for a single moment particularly when as a matter of fact, there is no date mention in the complaint regarding service of notice. He further submits that this is one of the mandatory requirements which were to be fulfilled and non recital of the said date would inevitably mean that the notice has not been served and the complaint would bound to fall. 5. Learned AGA on the other hand submits that once a cheque stood drawn then the presumption under Section 139 of the N.I. Act is in favour of the holder and the issue as to whether the notice has been served or not is a matter to trial. 5. I heard the submissions so made across the bar and perused the record carefully. Apparently, with respect to dishonouring of a cheque on 21.10.2023 a statutory notice was issued on 7.11.2023 by the opposite party no.2 upon the applicant and the complaint stood preferred 29.11.2023. 6. the Hon'ble Apex Court in the case of Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah 2014 (12) SCC 685 had the occasion to consider the said aspect of the matter and it was observed 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." 7. Applying the principles in the present case what would be suffice is the issuance of the notice and the question as to whether the same was served or not is a matter of trial. It is also not the case of the applicant that there was incorrect address in the complaint. Moreover presumption under Section 139 of the N.I. Act would always be there in favour of the holder once the cheuqe stood dishonoured. 8. Accordingly, no case is made out. The application stands rejected. Order Date :- 17.5.2025 piyush Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad