Neutral Citation No. - 2024:AHC:44724
Court No. - 93 Case :- APPLICATION U/S 482 No. - 2940 of 2024
Applicant :- Ziauddin
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Mohd. Asim Zulfiquar
Counsel for Opposite Party :- G.A.
Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard Sri Mohd. Asim Zulfiquar, learned counsel for the applicant and Sri Udai Bhan, leaned A.G.A. for State.
2. The present application under Section 482 Cr.P.C. has been filed to quash the impugned summoning order dated 10.05.2022 passed by Additional Chief Judicial Magistrate Court No.01 Varanasi as well as N.B.W. dated 31.01.2023 passed by IXth Additional Chief Judicial Magistrate, Varanasi in Complaint Case No. 43249 of 2021 (Bajrang Kumar Aggarwal Vs. Ziauddin) under Section 138 N.I. Act, Police Station Chetganj, District Varansi (Annexure No.1 to this affidavit).
Contention of the learned counsel for the applicant is two folds against the impugned summoning order.
(1) Cheque in question was issued as security cheque.
(2) The statutory notice was sent to the applicant on incorrect address.
3. Learned counsel for the applicant further submitted that as per the tax invoice the address is different. In support of his contention he has relied upon the judgment of Jammu & Kashmir High Court passed in CRMC No. 381 of 2018 decided on 08.07.2022
and also the judgment of Madras High Court in the case of
Kishore Vs. Arul Jothi reported in 2017 0 Supreme (Mad) 2221 decided on 03.08.2017 and also the judgment of Apex Court in the case of C.C. Alavi Haji Vs. Palapetty Muhammed and another reported in 2007 (6) SCC 555 as well as the judgment of Apex Court in the case of D.Vinod Shivappa Vs. Nanda Belliappa reported in 2006 (6) SCC 456. In those judgments the Hon'ble High Court as well as the Apex Court observed that under Section 27 of General Clauses Act will come into play only when the
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notice was sent on correct address.
4. Per contra, learned A.G.A. has submitted that in the complaint itself clearly mentioned that notice has been sent to applicant on his correct address and it was also mentioned in the complaint, notice was duly served upon present applicant on 23.11.2021. Therefore, question of invoking presumption under Section 27 of General Clauses Act did not arise.
5. After hearing the parties and perusal of record, it appears that as per complaint that the applicant is proprietor of Samsung Mobile and the applicant used to purchase mobile phones from him and in lieu of the price of certain mobile purchased by the applicant he had issued cheque of Rs. 18,61,000/- on 09.11.2021 bearing cheque no. 000002 of his account in the Bank of Baroda Branch Phoolpur Prayagraj. This cheque was presented on 09.11.2021 but returned back on 10.11.2021 with the endorsement "account close". Thereafter, notice was sent to present applicant on 18.11.2021 through registered post at the correct address of present applicant which was also served upon him on 23.11.2021. Therefore, in this case, there is specific averments that a notice was sent on correct address that was duly received by the present applicant on 23.11.2021. The presumption of Section 27 of General Clauses Act, as mentioned in the judgment relied upon by learned counsel for the applicant come into picture only when the registered notice sent on the address of applicant did not return back. Therefore, above judgments did not apply in the present case as notice was received by applicant on 23.11.2021. So far as the contention of learned counsel for applicant that in the tax invoice address is different as mentioned in the complaint. Such ground can be considered during the trial which requires evidence and cannot be a ground for quashing the proceedings under Section
138 N.I. Act. Therefore, this court does not find any good ground to quash the impugned summoning order.
6. In view of above, present application fails and is liable to be
dismissed.
Order Date :- 13.3.2024 Imtiyaz
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