Read Time: 06 minutes

The Allahabad High Court recently, refused to quash a complaint case filed under Section 138 NI Act as there was an assertion in the complaint regarding service of notice and therefore directed the trial court to expedite the hearing as the complaint case had been pending since 2007 and the as per Negotiable Instruments Act the proceedings under Section 138 NI Act ought to be concluded within 6 months.

The present application u/s 482 Cr.P.C. was filed to quash the proceedings of Complaint Case under Section 138 of Negotiable Instruments Act, 1881 , pending in the court of Metropolitan Magistrate.

The Single Bench of Justice Vivek Varma dismissed the application and stated it be misconceived,

“The factum of disputed service of notice requires adjudication on the basis of evidence. The same can only be done and appreciated by the trial court and not by this Court under the jurisdiction conferred by Section 482 Cr.P.C.”

The Learned counsel for the applicant submitted that, “the entire allegations are false. The cheque in question was not issued against any existing debt or liability. Referring to the complaint, it was also argued that date of service of notice is not disclosed in the complaint. Until and unless date of service of notice is disclosed, cause of action to initiate the prosecution under section 138 of the Act does not arise.”

On the contrary the AGA appearing for the State submitted that, “it is not mandatory to disclose the date of service of notice in the complaint. It is a matter of evidence, which can be seen during the trial. At this stage, only a prima facie case is to be seen. There is no illegality or infirmity in the impugned order.”

He further contended that, once it is mentioned in the complaint that notice was dispatched on the address of the accused, which has not been stated to be incorrect, there would be a presumption in law with regard to service of notice.

Taking into account the factual matrix of the present case the bench relied upon SC judgment in C.C.Alavi Haji Vs. Palapetty Muhammed and another reported in (2007) 6 SCC 555, where the court said case has enunciated the presumption under Section 114 of the Evidence Act and Section 27 of the General Clauses Act and therefore and has held that the absence of averments in the complaint about service of notice upon the accused is the matter of evidence.

Further the Bench noted that, the burden of proving that the cheque had not been issued for any debt or liability, is also upon the applicant and can also be gone into by the Trial Court. Therefore, “the court does not seem it proper, and cannot be persuaded to have a pre-trial before the actual trial begins. At the stage of summoning, the Magistrate has only to see whether a prime facie case is made out or not.”

Case title- Ganesh Babu Gupta v. State of U.P., 2021

Law Point – S 138 of NI Act