2026:HHC:24407 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal (A-SB) No. 45 of 2026 Reserved on: 17.6.2026 Date of Decision: 24.6.2026. Kuldeep Chand (deceased) through LR Sharmila Kanwar ….Petitioner Versus Raman Sood ….Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellant : Mr Lakshay Thakur, Advocate. For the Respondent : None. Rakesh Kainthla, Judge Cr.MP(M) No. 1048 of 2026 The applicant/appellant has filed the present application for special leave to appeal against the judgement dated 1.4.2026 passed by learned Additional Chief Judicial Magistrate, Court No.1, Shimla, District Shimla, H.P. (learned Trial Court), vide which the respondent (accused before learned Trial Court) was acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instrument Act (NI Act). (The parties shall 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present application are that the complainant filed a complaint against the accused before the learned Trial Court for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that the parties were well-known to each other. The accused approached the complainant and demanded ₹2,50,000/- for business purposes. The complainant agreed to the request of the accused and advanced a sum of ₹2,50,000/- to him. The accused issued a cheque of ₹2,50,000/- to repay the amount. The complainant presented the cheque before the bank, but it was dishonoured with the endorsement ‘funds insufficient’. The complaint sent a legal notice to the accused on 4.11.2026 by way of a registered post, asking the accused to repay the amount within 15 days from the date of receipt of the notice. The notice was received by the accused, and the accused failed to repay the amount. Hence, the complaint was filed against the accused for taking action as per the law. 3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, notice of 3 accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act, to which he pleaded not guilty and claimed to be tried. 4. The complainant examined himself (CW1) to prove the complaint. 5. The accused, in his statement recorded under Section 313 of the Code of Criminal Procedure (Cr.PC), denied the complaint’s case in its entirety. He did not produce any evidence in his defence. 6. The learned Trial Court held that the notice was sent to the accused on 4.11.2016. The acknowledgement was not received regarding the delivery. There was no other evidence to show that notice was duly served upon the accused. Therefore, a presumption would have to be applied that the notice was deemed to be served upon the accused under Section 27 of the General Causes Act and Section 114 of the Indian Evidence Act. The date of service has to be presumed 30 days from the date of the issuance of the notice. The cause of action would have accrued to the complainant on 19.12.2016; the complaint was filed on 29.11.2016, and such a complaint was premature. Therefore, the complaint was dismissed. 4 7. Being aggrieved by the judgment passed by the learned Trial Court, the complainant has filed the present appeal asserting that the learned Trial Court erred in holding that the service would be effected on the 30th day of the issuance of the notice. Both parties were residents of Shimla, and the registered letter could have reached the house of the accused within a period of one day. The notice is deemed to have been served, and the accused could have made the payment within 15 days of the receipt of the summons as per the judgment of the Hon’ble Supreme Court of India in C.C. Alavi Haji Vs. Palapetty Muhammed (2007) 6 SCC 555 and other binding precedents. Therefore, it was prayed that the present application be allowed and the leave to appeal be granted. 8. I have heard Mr Lakshay Thakur, learned counsel for the appellant/applicant, who has submitted that the learned Trial Court erred in dismissing the complaint as premature. The notice is deemed to have been served upon the accused because it was sent to the correct address. The accused did not lead evidence to rebut the presumption. It was wrongly held that the presumption of service can be drawn on the 30th day of the issuance of the notice. Both parties were residing at Shimla, and the notice would have been received within seven days. The view taken by the learned Trial 5 Court is erroneous. Therefore, it was prayed that the present application be allowed and the leave to appeal be granted. 9. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. 10. It has not been disputed that the notice was sent by way of registered post, and no acknowledgement was received. The complainant has also not filed any report issued by the Postal Department showing the date of delivery. Therefore, the presumption under Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act regarding the deemed service has to be applied. 11. It was laid down by the Hon’ble Supreme Court in Subodh S. Salaskar v. Jayprakash M. Shah, (2008) 13 SCC 689: (2009) 3 SCC (Cri) 834: 2008 SCC OnLine SC 1174 that where a notice was sent by registered post acknowledge due, the presumption of service of notice can be raised within a reasonable time and 30 days must be held to be sufficient for service of notice. It was observed at page 699: “23. Thirty days ordinarily must be held to be sufficient for service of notice. In fact, when the service of notice is sought to be effected by speed post, ordinarily, the service takes place within a few days. Even under Order 5 Rule 9(5) of the 6 Code of Civil Procedure, 1908, a summons is presumed to be served if it does not come back within thirty days. In a situation of this nature, there was no occasion for the Court to hold that service of notice could not be effected within a period of thirty days.” 12. The Jharkhand High Court held in Manoj Kumar Nag v. State of Jharkhand, 2021 SCC OnLine Jhar 458 that when there is no evidence regarding the service, the presumption regarding the delivery of the notice can be made after thirty days of the issuance of the notice. It was observed: “22. This Court finds that there is no material on record regarding the service of legal notice dated 03.03.2008 dispatched by registry on 04.03.2008 upon the petitioner, and it is not the case of the complainant that the legal notice was returned unserved or returned for any other reason. This court is also of the considered view that a presumption regarding service of notice sent through registered cover can be drawn only upon expiry of 30 days from the date of dispatch of notice, as has been held by the Hon'ble Supreme Court in the judgment reported in (2008) 13 SCC 689 (Subodh S. Salaskar v. Jayprakash M. Sah). In the said judgment, the notice was sent through speed post, and although the actual date of service of notice was not known, the Complainant proceeded on the basis that the same was served within a reasonable period. It was held that if the presumption of notice within the reasonable period is raised, the deemed service at best can be taken to be 30 days from the date of its issuance and the accused was required to make payment in terms of the said notice within 15 days thereafter and the complaint petition therefore could have been filed after expiry of 15 days given to the accused for payment of money after receipt of notice.” 7 13. A similar view was taken in Anil Kumar Goel v. State of U.P., 2021 SCC OnLine All 410, wherein it was observed: “18. Coming to the facts of the present case, the notice having been sent on 19.09.2012, if the presumption of service of notice within a reasonable time is raised, shall be deemed to have been served, at best, within a period of 30 days from the date of issuance thereof, i.e. 19.09.2012. The applicant was required to make payment in terms of the said notice within 15 days thereafter, i.e. on or about 3.11.2012. The complaint, therefore, should have been filed by 03.12.12. Admittedly, the complaint was filed on 19.11.2012, and therefore, at this stage, it cannot be said that no proceedings under Section 138 of the Act could be drawn against the applicant.” 14. Madhya Pradesh High Court has also taken a similar view in Vishal Gupta vs. Kishan Batham (04.08.2023 - MPHC): MANU/MP/2098/2023, wherein it was observed: “11. Thus, the learned Trial Court committed no mistake in holding that in the absence of any proof of service of notice on a particular day to the accused, it would be deemed to be served on the 30th day of the dispatch of notice.” 15. This position was reiterated in Damodar Mallick vs. State of Jharkhand and Ors. (08.01.2024 - JHRHC): MANU/JH/0024/2024 wherein it was observed: “9. It is crystal clear from plain reading of Section 138 of the N.I. Act that the drawer of a cheque; if it fails to make the payment of the amount of the cheque to the payee within 15 days of the receipt of the demand notice, then the cognisance of the offence can be taken by a learned Judicial Magistrate for the offence punishable under Section 138 of the N.I. Act. 8 The question arises what if, there is no document to suggest that the demand notice in writing given by the complainant- opposite party No. 2 has been served upon the drawer of the cheque, as has been held by the Hon'ble Supreme Court of India in the case of the Subodh S. Salaskar vs. Jayprakash M. Shah & Another reported in MANU/SC/3298/2008 : (2008) 13 SCC 689 and which principle of law has been reiterated by this Court in the case of Md. Siraj vs. State of Jharkhand & Another passed in Cr.M.P. No. 1677 of 2022 dated 21st of November, 2023; that the law is well settled that in case there is no material to suggest that such demand notice was ever served upon drawer of the cheque or any material that such demand notice has returned unserved within the period of 30 days from the date of the issue of such notice, such demand notice is deemed to have been served on expiry of the period of 30 days from the date of issue of such notice and the cognizance of the offence punishable under Section 138 of the N.I. Act can be taken if the drawer of the cheque fails to pay the amount as per the cheque within 15 days of such deemed service of notice. So considering the claim of the complainant that the notice was sent on 15.05.2019 and the complaint was filed on 14.06.2019 without any material to suggest that during that period the petitioner had received notice of demand and 15 days have elapsed after receipt of such notice of demand on or before 14.06.2019, this Court has no hesitation in holding that the complaint is pre- mature, hence, the cognizance is bad in law.” 16. In the present case, the notice was sent on 04.11.2016 and would be deemed to be served on 03.12.2016. The complainant filed the complaint on 08.12.2016 within a period of 15 days available to the accused to pay the amount. Thus, the complaint was premature. It was laid down by the Hon’ble Supreme Court in Gajanand Burange v. Laxmi Chand Goyal, 2022 SCC OnLine SC 1711, 9 that no action can be taken on a premature complaint, and the same is liable to be dismissed. It was observed: 5. The issue which is raised in this appeal is no longer res integra and is covered by a three-judge bench decision of this Court in Yogendra Pratap Singh v. Savitri Pandey (2014) 10 SCC 713. Two issues were formulated for decision before the three-judge Bench, which were: “1.1. (i) Can cognisance of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138(c) of the Act aforementioned? And, 1.2. (ii) If the answer to Question 1 is in the negative, can the complainant be permitted to present the complaint again, notwithstanding the fact that the period of one month stipulated under Section 142(b) for the filing of such a complaint has expired?” 6. The first issue was resolved by paragraph 35 of the judgment, which is extracted below: “35. Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in clause (c) of the proviso has not expired? Section 2(d) of the Code defines “complaint. According to this definition, a complaint means any allegation made orally or in writing to a Magistrate with a view to taking action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognisance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint filed before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at 10 all in the eyes of the law. It is not the question of prematurity of the complaint, where it is filed before the expiry of 15 days from the date on which notice has been served on him; it is no complaint at all under the law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the court from taking cognisance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of the law, obviously, no cognisance of an offence can be taken on the basis of such a complaint. Merely because at the time of taking cognizance by the court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the court is not clothed with the jurisdiction to take cognizance of an offence under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque.” 7. In the present case, while the notice was received by the appellant on 8 November 2005, the complaint was filed before the period of fifteen days was complete. The complaint could have been filed only after 23 November 2005, but was filed on 22 November 2005. In view of the legal bar which is created by Section 142 of the NI Act, as explained in the three-judge Bench decision of this Court, taking of cognisance by the Court was contrary to the law and the complaint was not maintainable before the expiry of the period of fifteen days from the date of its receipt by the appellant.” 17. Therefore, the submission made on behalf of the accused has to be accepted as correct that the complaint was premature and no action could have been taken on it. 11 18. It was laid down by the Hon’ble Supreme Court in C.C. Alavi Haji (supra) that a person who claims that he had not received the notice can pay the amount within 15 days of the receipt of the summons from the Court, failing which the plea regarding the non- service is not available to him. In the present case, the accused never claimed that he had not received the notice. The Court also did not hold that the notice was not served upon the accused; rather, it was held that there is a presumption regarding the service when the notice is sent to the correct address. Therefore, the cited judgment does not apply to the present case. 19. No other point was urged. 20. Therefore, in view of the above, the present petition fails, and it is dismissed. Cr. Appeal (A-SB) No. 45 of 2026 21. Since the leave to appeal has been refused, the present appeal is disposed of, so also the pending application(s), if any. 22. Records of the learned Courts below be sent back forthwith, along with a copy of this judgment. (Rakesh Kainthla) Judge 24th June, 2026 (Chander)