2026:HHC:28736 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal (A-SB) No. 54 of 2026 Reserved on: 3.7.2026 Date of Decision: 15.7.2026. Ranveer Singh Kaul …. Appellant Versus Kamal Shanker …. Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellant : Mr Rajiv Sirkeck, Advocate. For the Respondent : None. Rakesh Kainthla, Judge Cr.MP(M) No. 1174 of 2026 The present application has been filed for seeking leave to appeal against the judgment dated 7.4.2026 in case Regd. No. 276 of 2015, passed by learned Additional Chief Judicial Magistrate, Rampur Bushehr, District Shimla, HP (learned Trial Court), vide which the complaint filed by the applicant/appellant (complainant before learned Trial Court) for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) was dismissed. (The parties shall hereinafter be referred 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:28736 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 appeal are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that the complainant was running a shop in the name and style of M/s R. K. Seafood and a commission agent at Narkanda. The accused approached the complainant and purchased the apple boxes worth ₹6,00,000/= from the complainant. The accused failed to pay the amount. The complainant demanded the money, and the accused issued three cheques of ₹2,00,000/- each in the complainant’s favour. The complainant presented the cheques at his bank, but these were dishonoured with a remark ‘funds insufficient’. The complainant served a notice upon the accused on 09.11.2015, asking him to pay the amount within 15 days from the date of receipt of the notice. The notice was duly served upon the accused, but he failed to pay the amount. Hence, a complaint was filed before the learned Trial Court for taking action against the accused. 3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of 3 2026:HHC:28736 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 his complaint. 5. The accused denied the complainant’s case in its entirety in his statement recorded under Section 313 of the Code of Criminal Procedure (Cr.PC). He did not produce any evidence despite repeated adjournments, and his evidence was closed by the order of the Court. 6. Learned Trial Court held that the cheque carried with it a presumption that it was issued for consideration to discharge debt/liability. The burden is upon the accused to rebut the presumption. The complainant issued a notice to the accused, which was not shown to have been served upon him. Therefore, it is to be presumed that the notice was served upon the accused. Such a presumption can be drawn after 30 days from the date of the dispatch of the notice. In the present case, the notice was dispatched on 09.11.2015 and was deemed to be served on 09.12.2015. The accused had a period of 15 days till 24.12.2015 to pay the amount. However, the complainant filed the complaint on 4 2026:HHC:28736 18.12.2015. It was premature, and no action could be taken upon it. Therefore, the learned Trial Court dismissed the complaint. 7. Being aggrieved by the judgment and order passed by the learned Trial Court, the complainant has filed the present application asserting that the complainant had proved his case beyond a reasonable doubt. Learned Trial Court erred in holding that the mandatory provisions of Section 138 of the NI Act were not fulfilled. The accused had taken a plea that the cheque was issued as security, but this plea was not proved. Learned Trial Court erred in holding that the complaint was premature. Learned Trial Court had taken an unreasonable view of the matter. Hence, it was prayed that the present application be allowed and the leave to appeal be granted. 8. Mr. Rajeev Sirkek, learned counsel for the applicant/complainant, submitted that the learned Trial Court erred in dismissing the complaint. The accused had not disputed the receipt of the notice; rather, he claimed that he had sent a reply to the notice. The complaint was not premature, and the learned Trial Court erred in holding so. Therefore, he prayed that the present application be allowed and the leave to appeal be granted to the applicant/complainant. 5 2026:HHC:28736 9. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. 10. The complainant asserted in his complaint that a notice was sent to the accused on 09.11.2015, which was duly served upon the accused. However, the complainant did not produce any acknowledgement showing the proof of delivery. Therefore, the Court was required to draw a presumption of service under Section 27 of the General Clauses Act, read with Section 114 of the Indian Evidence Act. 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 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 6 2026:HHC:28736 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.” 13. A similar view was taken in Anil Kumar Goel v. State of U.P., 2021 SCC OnLine All 410, wherein it was observed: 7 2026:HHC:28736 “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. 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. 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 8 2026:HHC:28736 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.” 15. In the present case, the notice was sent on 09.11.2015, and it would be deemed to be served on 09.12.2015. The accused could have paid the amount within 15 days from the date of receipt of the notice. However, the complainant filed the complaint on 18.12.2015 before the expiry of 15 days from the date of the service of the notice, and the learned Trial Court had rightly held that the complaint was premature. 16. It was laid down by the Hon’ble Supreme Court in Gajanand Burange v. Laxmi Chand Goyal, 2022 SCC OnLine SC 1711, 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: 9 2026:HHC:28736 “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 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 10 2026:HHC:28736 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. Thus, the learned Trial Court had rightly held that the complaint was premature. 18. It was submitted that the accused had received the notice and had sent a reply to it. This submission will not help the complainant. The complainant has not filed a copy of the reply on record to show the date of service. Moreover, the learned Trial Court had dismissed the complaint because it was premature and not because the notice was not received by the accused. Thus, the 11 2026:HHC:28736 receipt of the notice by the accused without the proof of the date of service would not help the complainant’s case. 19. Hence, the learned Court had taken a reasonable view that could have been taken in the circumstances of the case, and no interference is required with the reasonable view of the learned Trial Court. 20. In view of the above, the present application fails, and it is dismissed. Cr. Appeal (A-SB) No. 54 of 2026 21. In view of dismissal of the application for leave to appeal, the present appeal stands disposed of. (Rakesh Kainthla) Judge 15th July, 2026 (Chander)