TMI Blog2022 (6) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... ice unserved, it is deemed to have been served. In view of these facts and circumstances of the case and above-stated position of law, it appears that the learned Sessions Judge did not consider the matter in correct perspective and committed error by setting aside the summoning order. The impugned order dated 03.11.2020, passed by the learned Sessions Judge, Meerut is set aside and the summoning order passed by the court of Additional Chief Judicial Magistrate, Court no. 1, Meerut stand restored - Application allowed. - APPLICATION U/S 482 No. 5743 of 2021 - - - Dated:- 6-6-2022 - Hon'ble Raj Beer Singh , J. For the Applicant : Hemant Kumar , Pradeep Kumar Keshri For the Opposite Party : G. A. ,Vishal Shukla , Vivek Kumar Singh ORDER Hon'ble Raj Beer Singh , J. 1. Heard learned counsel for the applicant, learned counsel for opposite party no. 2, learned A.G.A. for the State and perused the record. 2. This application under Section 482 Cr.P.C. has been filed with the prayer to quash the order dated 03.11.2020, passed by the learned Sessions Judge, Meerut in criminal revision no. 139 of 2020, (M. Kamal v. State of U.P. And Another), under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors., 2007(3) ACR 2738(SC) (ii) Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, 2014(3) ACR 2763 (SC) (iii) Anil Kumar Goel v. State of U.P. And Another, (Application u/s 482 Cr.P.C. No. 14190 of 2014, decided on 07.06.2021) 4. Learned counsel for opposite party No. 2 has opposed the application and argued that there was no valid service of demand notice upon opposite party no. 2 and that even it was not specified in the complaint that when the cause of action arose and thus, the complaint of applicant was not maintainable and that the summoning order was rightly set aside by the learned revisional court. It was submitted that in fact regarding the dispute, applicant has filed two separate cases. Besides the present complaint under Section 138 of N.I. Act, the applicant has also filed another complaint under Section 420 IPC and in that matter also, the summoning order of the said case under Section 420 IPC was set aside by the learned revisional court and against the order of learned revisional court, the application under Section 482 Cr.P.C. of applicant has already been dismissed by the High Court. Learned counsel further submitted that service of notice upon opposite pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 82 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. In the case of C.C. Alavi Haji (supra), the Hon'ble Apex Court has observed (in para nos. 13, 14 and 17) as under:- 13. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further 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 knowled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends. 17. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference. 8. In the case of Anil Kumar Goel (supra), it was held by co-ordinate Bench of this Court as under: Coming to the facts of the present case, the notice having been sent on 19.09.2012, if the presu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fully covered by the judgment of the Apex Court in the case Shakti Travel and Tours (supra) and in the case of Deepak Kumar and Another (supra). So far judgment relied upon by counsel for the respondent is concerned, that refers to the word 'service', it cannot be doubted that in case if the service is refused or service by absence could not be made effective, service could be deemed sufficient as per law, but in any case 15 days time prescribed by law should always be fulfilled to maintain complaint under section 138 of N.I.Act, 1881, which is lacking in the present case. In view of above, the application under Section 482 Cr.P.C. stands allowed and the proceedings are quashed. 10. From the above-stated case of Ajeet Seeds Ltd. (supra), it is clear that 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, the 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. Similar is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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