IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 1636 of 2026 in Criminal Appeal (A-SB) No. 78 of 2026. Reserved on: 25.08.2026 Date of Decision: 07.09.2026 Manjeet Singh ...Appellant Versus Shameshwar Singh (Pappu Rana) ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the applicant. : Mr Jagat Pal, Advocate. For the non-applicant. : Nemo. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 21.04.2026, passed by learned Additional Sessions Judge-I, Shimla, District Shimla, H.P. (learned Appellate Court), vide which judgment of conviction dated 16.09.2024, and order of sentence dated 17.09.2024 passed by learned Judicial Magistrate First Class, Court No.3, Shimla, H.P. (learned trial Court) were set aside. (The 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 parties shall 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 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 Negotiable Instruments Act (NI Act). It was asserted that the accused had issued a cheque for ₹63,000/- in favour of the complainant to discharge his legal liability. The complainant presented the cheque before his bank, and it was dishonoured with an endorsement ‘funds insufficient’. The complainant issued a notice to the accused asking him to pay the money within fifteen days of its receipt. The notice was duly served upon him; however, the accused failed to pay the amount. Hence, the complaint was filed before the learned trial Court against the accused. 3. The learned trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of 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 trial. 3 4. The complainant (CW-1) examined himself to prove his complaint. 5. The accused, in his statement recorded under Section 313 of the Code of Criminal Procedure (CrPC), stated that he had issued a security cheque to the complainant. The accused did not produce any evidence in his defence. 6. Learned trial Court held that the complainant had proved that the cheque was issued in his favour to discharge the debt/liability. The plea taken by the accused that the cheque was issued as a security will not help him because a cheque issued as a security also attracts the liability on its dishonour. The notice was deemed to have been served upon the accused as per Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act. The accused failed to pay the money despite the deemed service of the notice. All the ingredients of the commission of an offence punishable under Section 138 of the NI Act were duly proved. Hence, the learned trial Court convicted the accused of the commission of an offence punishable under Section 138 of the NI Act and sentenced him to undergo simple imprisonment for one year, pay a fine of ₹ 1,26,000/- and, in default of payment of fine, to undergo Simple imprisonment for one month. 4 7. Being aggrieved by the judgment and order passed by the learned trial Court, the accused filed an appeal, which was decided by the learned Additional Sessions Judge-I, Shimla (the learned Appellate Court). The learned Appellate Court held that there was no proof of service, and the learned trial Court applied the presumption contained in Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act. The statutory presumption can be applied after 30 days from the date of dispatch. The accused had 15 days to pay the amount thereafter. The complaint was filed before the expiry of 15 days available to the accused, and it was premature. The learned trial Court had not adverted to this aspect. Hence, the learned appellate Court allowed the appeal and set aside the judgment and order passed by the learned trial Court. 8. Being aggrieved by the judgment passed by the learned appellate Court, the appellant has filed the present appeal and an application for seeking leave to appeal. It has been asserted that the learned appellate Court failed to notice the presumption contained in Sections 118 and 139 of the NI Act. The learned trial Court had rightly appreciated the evidence, and the learned appellate Court erred in reversing the well-reasoned judgment 5 passed by the learned trial Court. Therefore, it was prayed that the present application be allowed and leave to appeal be granted. 9. Mr Jagat Pal, learned counsel for the applicant/ appellant, submitted that the learned Appellate Court erred in holding that the complaint was premature. Learned Trial Court had held that the period of 7 days is to be taken as the period of service, and learned Appellate Court erred in taking the period of 30 days. Learned Appellate Court has taken an unreasonable view. Hence, he prayed that the present application be allowed and leave to appeal be granted. 10. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 11. The learned Trial Court proceeded on the basis that there was no acknowledgement of the delivery of the notice and the notice is deemed to be served under Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act. The learned trial Court relied upon the judgment of the Delhi High Court in ICICI Bank Ltd. v. Prafull Chandra (2007) 55 AIC 284 (Del) to hold that the notice is deemed to be served when the letter would be delivered in the ordinary course of post and benefit of at least a week is admissible in this regard. It was laid down by the Hon’ble 6 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 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 7 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: “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.” 8 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. 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.” 9 16. A similar view was taken by this Court in HDFC Bank v. Reena Cr MP(M) No. 1634 of 2024 decided on 09.09.2024. These judgments were binding upon the learned trial Court, and the learned trial Court could not have followed the judgment of the Delhi High Court by ignoring the binding precedent of this Court. 17. The notice was sent on 17.11.2018 as per postal receipt (Ext.CW5/CW-1); the notice is deemed to be served on 16.12.2018, and a period of 15 days was available to the accused to pay the amount thereafter. The complaint was filed on 17.12.2018, before the expiry of 15 days; therefore, it was rightly held to be premature. 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: “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, 10 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 a 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 eyes 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 11 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.” 18. Thus, the learned appellate Court had rightly held the complaint to be premature, and there is no infirmity in the judgment passed by the learned Appellate Court. Hence, the present application fails and is dismissed. Criminal Appeal (A-SB) No. 78 of 2026 19. Since the application for seeking leave to appeal has been dismissed, the present appeal has become infructuous and is disposed of. (Rakesh Kainthla) Judge 07th September, 2026. (Ravinder)