Reserved On: 13.08.2025 vs Sanjeev Vaid

Cr. MMO No. 776 of 2025.

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Reserved on: 13.08.2025.

Date of Decision: 22.08.2025.

Uma Rani ...Petitioner Versus

Sanjeev Vaid ...Respondent

Coram

Hon'ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?1 Yes

For the Petitioner : Mr. Shivank Singh Panta, Advocate.

For the Respondent : Nemo.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

quashing of complaint No. 279 of 2021, titled "Sanjeev Vaid Vs Smt.

Uma Rani", pending before the Court of the learned Judicial

Magistrate First Class, Paonta Sahib (learned Trial Court). (The

parties shall hereinafter be referred to in the same manner as they

were arrayed before the learned trial Court for convenience.)

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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2. Briefly stated, the facts giving rise to the present

petition are that the complainant filed a complaint against the

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petitioner-accused for the commission of an offence punishable

under Section 138 of the Negotiable Instruments Act (NI Act). It

was asserted that the accused and the complainant were known to

each other. The accused required money for her domestic

purposes, so she borrowed an amount of ₹ 8,00,000/- from the

complainant in June 2019.

r The accused promised to repay ₹

75,000/- in cash and the balance amount through cheque. She

issued post-dated cheque dated 19.02.2021 for ₹ 7,25,000/- drawn

on Oriental Bank of Commerce, Branch Bhamian Khurd, Mundian

Kalan, Ludhiana, Punjab, to discharge her legal liability. The

accused failed to repay the money; hence, the complainant

presented the cheque to his bank, Punjab National Bank, from

where it was sent to the bank of the accused. The bank of the

accused dishonoured the cheque with an endorsement 'Insufficient

Funds'. The complainant served a notice upon the accused asking

her to repay the amount within 15 days from the date of the receipt

of the notice. The accused refused to receive the demand notice.

She failed to repay the amount. Hence, a complaint was filed before

the learned Trial Court for taking action, as per the law.

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3. Learned Trial Court found sufficient reasons to proceed

against the accused and ordered the issuance of the summons.

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4. Being aggrieved by the filing of the complaint and

issuance of the summons, the accused has filed the present petition

for quashing of the complaint and the consequential proceedings.

It was asserted that the essential ingredient of Section 138 of the NI

Act, that the cheque was issued towards the legally enforceable

debt or liability, is absent. The cheque was issued on an oral

request. No written promissory note, loan agreement or

acknowledgement exists to demonstrate any legally enforceable

debt or liability. The complaint is to be filed within one month

from the date of the cause of action. The notice was issued on

16.03.2021, which was returned to the complainant on 25.03.2021.

The statutory period of 15 days is to be calculated from the date of

refusal, i.e. 22.03.2021. The criminal complaint was filed on

25.11.2021, much beyond the statutory period of one month for

filing the complaint. The legal notice was not served upon the

accused because she was not residing at the address furnished by

her. She has been residing outside India since June 2019, and the

refusal to accept the delivery does not constitute a valid service.

The presumption of service can be drawn when the notice is sent to

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the correct address. Therefore, it was prayed that the present

petition be allowed and the complaint, as well as consequential

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proceedings arising out of the complaint, be quashed.

5. Mr. Shivank Singh Panta, learned Counsel for the

petitioner, submitted that the petitioner is residing outside India

and the notice issued to her was not served. The cheque was not

issued in discharge of the legal liability, and the complaint was

filed beyond the period of limitation. Continuation of the

proceedings before the learned Trial Court amounts to an abuse of

the process of the Court. Hence, he prayed that the present petition

be allowed and the complaint, as well as consequential proceedings

arising out of the same, be quashed. He relied upon the judgments

of R.L.Varma & Sons (Huf) Vs P.C. Sharma, (2019) 263 DLT 586, and

Jugesh Sehgal Vs Shamsher Singh Gogi, 2009 (14) SCC 683, in

support of his submission.

6. I have given considerable thought to his submissions

made at the bar and have gone through the records carefully.

7. The law relating to quashing of FIR was explained by

the Hon'ble Supreme Court in B.N. John v. State of U.P., 2025 SCC

OnLine SC 7 as under: -

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"7. As far as the quashing of criminal cases is concerned, it is now more or less well settled as regards the principles to be applied by the court. In this regard, one

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may refer to the decision of this Court in State of

Haryana v. Ch. Bhajan Lal, 1992 Supp (1) SCC 335, wherein this Court has summarised some of the principles under which FIR/complaints/criminal cases

could be quashed in the following words:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under

Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code

which we have extracted and reproduced above, we

give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or

otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible

guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power

should be exercised.

(1) Where the allegations made in the first

information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the

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Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made

in the FIR or complaint and the evidence collected in support of the same do not disclose

the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute

only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section

155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable based on which no prudent person

can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or

the concerned Act (under which a criminal proceeding is instituted) to the institution and

continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to a

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private and personal grudge." (emphasis added)

8. Of the aforesaid criteria, clause no. (1), (4) and (6)

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would be of relevance to us in this case.

In clause (1), it has been mentioned that where the allegations made in the first information report or the

complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused, then the FIR or the complaint can be quashed.

As per clause (4), where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted

by a police officer without an order dated by the

Magistrate as contemplated under Section 155 (2) of the CrPC, and in such a situation, the FIR can be quashed.

Similarly, as provided under clause (6), if there is an express legal bar engrafted in any of the provisions of the CrPC or the concerned Act under which the criminal

proceedings are instituted, such proceedings can be quashed."

8. This position was reiterated in Ajay Malik v. State of

Uttarakhand, 2025 SCC OnLine SC 185, wherein it was observed:

"8. It is well established that a High Court, in exercising its extraordinary powers under Section 482 of the CrPC, may issue orders to prevent the abuse of court processes or to secure the ends of justice.

These inherent powers are neither controlled nor limited by any other statutory provision. However, given the broad and profound nature of this authority, the High Court must exercise it sparingly. The

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conditions for invoking such powers are embedded within Section 482 of the CrPC itself, allowing the High Court to act only in cases of clear abuse of process or

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where intervention is essential to uphold the

ends of justice.

9. It is in this backdrop that this Court, over the

course of several decades, has laid down the principles and guidelines that High Courts must follow before quashing criminal proceedings at the threshold, thereby pre-empting the Prosecution from building its case

before the Trial Court. The grounds for quashing, inter alia, contemplate the following situations : (i) the criminal complaint has been filed with mala fides; (ii) the FIR represents an abuse of the legal process; (iii)

no prima facie offence is made out; (iv) the dispute is

civil in nature; (v.) the complaint contains vague and omnibus allegations; and (vi) the parties are willing to settle and compound the dispute amicably (State of

Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335)

9. The present petition is to be decided as per the

parameters laid down by the Hon'ble Supreme Court.

10. It was submitted that, as per the complaint, the cheque

was issued as security and does not attract the provisions of Section

138 of the NI Act. This submission is not acceptable. It was laid

down by this Court in Hamid Mohammad Versus Jaimal Dass 2016

(1) HLJ 456, that even if the cheque was issued towards the security,

the accused will be liable. It was observed:

"9. Submission of learned Advocate appearing on behalf of the revisionist that the cheque in question was issued

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to the complainant as security and on this ground, the criminal revision petition be accepted is rejected being devoid of any force for the reasons hereinafter

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mentioned. As per Section 138 of the Negotiable

Instruments Act 1881, if any cheque is issued on account of other liability, then the provisions of Section 138 of the Negotiable Instruments Act 1881 would be attracted.

The court has perused the original cheque, Ext. C-1 dated 30.10.2008, placed on record. There is no recital in the cheque Ext. C-1, that cheque was issued as a security

cheque. It is well-settled law that a cheque issued as security would also come under the provision of Section 138 of the Negotiable Instruments Act 1881. See 2016 (3) SCC page 1 titled Don Ayengia v. State of Assam &

another. It is well-settled law that where there is a

conflict between former law and subsequent law, then subsequent law always prevails."

11. It was laid down by the Hon'ble Supreme Court in

Sampelly Satyanarayana Rao vs. Indian Renewable Energy

Development Agency Limited 2016(10) SCC 458 that issuing a

cheque toward security will also attract the liability for the

commission of an offence punishable under Section 138 of N.I. Act.

It was observed: -

"10. We have given due consideration to the submission advanced on behalf of the appellant as well as the observations of this Court in Indus Airways Private Limited versus Magnum Aviation Private Limited (2014)

12 SCC 53 with reference to the explanation to Section 138 of the Act and the expression "for the discharge of any debt or other liability" occurring in Section 138 of the Act. We are of the view that the question of whether

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a post-dated cheque is for "discharge of debt or liability" depends on the nature of the transaction. If on the date of the cheque, liability or debt exists or the

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amount has become legally recoverable, the Section is

attracted and not otherwise.

11. Reference to the facts of the present case clearly

shows that though the word "security" is used in clause 3.1(iii) of the agreement, the said expression refers to the cheques being towards repayment of instalments. The repayment becomes due under the agreement, the

moment the loan is advanced and the instalment falls due. It is undisputed that the loan was duly disbursed on 28th February 2002, which was prior to the date of the cheques. Once the loan was disbursed and instalments

have fallen due on the date of the cheque as per the

agreement, the dishonour of such cheques would fall under Section 138 of the Act. The cheques undoubtedly represent the outstanding liability.

12. Judgment in Indus Airways (supra) is clearly distinguishable. As already noted, it was held therein that liability arising out of a claim for breach of contract

under Section 138, which arises on account of dishonour

of a cheque issued, was not by itself at par with a criminal liability towards discharge of acknowledged and admitted debt under a loan transaction. Dishonour

of a cheque issued for the discharge of a later liability is clearly covered by the statute in question. Admittedly, on the date of the cheque, there was a debt/liability in praesenti in terms of the loan agreement, as against the case of Indus Airways (supra), where the purchase order had been cancelled and a cheque issued towards advance payment for the purchase order was dishonoured. In that case, it was found that the cheque had not been issued for discharge of liability but as an advance for the purchase order, which was cancelled. Keeping in mind

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this fine, but the real distinction, the said judgment cannot be applied to a case of the present nature where the cheque was for repayment of a loan instalment

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which had fallen due, though such deposit of cheques

towards repayment of instalments was also described as "security" in the loan agreement. In applying the judgment in Indus Airways (supra), one cannot lose

sight of the difference between a transaction of the purchase order which is cancelled and that of a loan transaction where the loan has actually been advanced

and its repayment is due on the date of the cheque.

13. The crucial question to determine the applicability of Section 138 of the Act is whether the cheque represents the discharge of an existing enforceable debt or liability,

or whether it represents an advance payment without

there being a subsisting debt or liability. While approving the views of different High Courts noted earlier, this is the underlying principle as can be

discerned from the discussion of the said cases in the judgment of this Court." (Emphasis supplied)

12. This position was reiterated in Sripati Singh v. State of

Jharkhand, 2021 SCC OnLine SC 1002: AIR 2021 SC 5732, and it was

held that a cheque issued as security is not waste paper and a

complaint under section 138 of the NI Act can be filed on its

dishonour. It was observed:

"17. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe, and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the

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fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount

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in a specified timeframe and issues a cheque as security

to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the

parties to defer the payment of the amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be

entitled to present the same. On such a presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow."

13. Therefore, the fact that the cheque was issued as a

security is not sufficient to quash the complaint.

14. It was specifically stated in the complaint that the

accused borrowed ₹ 8,00,000/- from the complainant. She

promised to repay ₹ 75,000/- in cash and issued a cheque of

₹7,25,000/- to discharge her legal liability. It was laid down by the

Hon'ble Supreme Court in Punit Beriwala v. State (NCT of Delhi),

2025 SCC OnLine SC 983, that the averments in the complaint are to

be taken as correct while exercising inherent jurisdiction. It was

observed: -

"29. It is settled law that the power of quashing a complaint/FIR should be exercised sparingly with circumspection, and while exercising this power, the

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Court must believe the averments and allegations in the complaint to be true and correct. It has been repeatedly held that, save in exceptional cases where non-

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interference would result in a miscarriage of justice, the

Court and the judicial process should not interfere at the stage of investigation of offences. Extraordinary and inherent powers of the Court should not be used in a

routine manner according to its whims or caprice."

15. Therefore, prima facie, the complaint discloses the

commission of an offence punishable under Section 138 of the NI

Act. r

16. It was submitted that there was no proof of the payment

of ₹ 8,00,000/- and the cheque was not issued in discharge of the

legal liability. This submission will not help the petitioner-

accused. It was laid down by the Hon'ble Supreme Court in Rathish

Babu Unnikrishnan v. State (NCT of Delhi), 2022 SCC OnLine SC 513

that the cheque carries with it a presumption of consideration

which is to be rebutted by leading evidence, and any factual dispute

is to be resolved by weighing evidence. It was observed:

"10. It is also relevant to bear in mind that the burden of proving that there is no existing debt or liability is to be discharged in the trial. For a two-judge Bench in M.M.T.C. Ltd. v. Medchl Chemicals and Pharma (P) Ltd. (2002) 1 SCC 234, Justice S.N. Variava made the following pertinent observation on this aspect: --

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"17. There is, therefore, no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of

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proving that there was no existing debt or liability

was on the respondents. This they have to discharge in the trial. At this stage, merely on the basis of averments in the petitions filed by them, the High

Court could not have concluded that there was no existing debt or liability."

11. The legal presumption of the cheque having been

issued in the discharge of liability must also receive due weightage. In a situation where the accused moves the Court for quashing even before the trial has commenced, the Court's approach should be careful

enough not to prematurely extinguish the case by

disregarding the legal presumption which supports the complaint. The opinion of Justice K.G. Balakrishnan for a three-judge Bench in Rangappa v. Sri Mohan (2010) 11

SCC 441 would, at this stage, deserve our attention: --

"26. ... we are in agreement with the respondent claimant that the presumption mandated by Section

139 of the Act does indeed include the existence of a

legally enforceable debt or liability. As noted in the citations, this is, of course, in the nature of a rebuttable presumption, and it is open to the accused

to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant."

12. At any rate, whenever facts are disputed, the truth should be allowed to emerge by weighing the evidence. On this aspect, we may benefit by referring to the ratio in Rajeshbhai Muljibhai Patel v. State of Gujarat (2020) 3 SCC 794, where the following pertinent opinion was given by Justice R. Banumathi: --

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"22. .............. When disputed questions of fact are involved, which need to be adjudicated after the parties adduce evidence, the complaint under Section

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138 of the NI Act ought not to have been quashed by

the High Court by taking recourse to Section 482 CrPC. Though the Court has the power to quash the criminal complaint filed under Section 138 of the NI

Act on legal issues like limitation, etc. criminal complaint filed under Section 138 of the NI Act against Yogeshbhai ought not to have been quashed

merely on the ground that there are inter se disputes between Appellant 3 and Respondent 2. Without keeping in view the statutory presumption raised under Section 139 of the NI Act, the High Court, in our

view, committed a serious error in quashing the

criminal complaint in CC No. 367 of 2016 filed under Section 138 of the NI Act."

13. Bearing in mind the principles for the exercise of

jurisdiction in a proceeding for quashing, let us now turn to the materials in this case. On careful reading of the complaint and the order passed by the Magistrate,

what is discernible is that a possible view is taken that the cheques drawn were, in the discharge of a debt for

the purchase of shares. In any case, when there is a legal presumption, it would not be judicious for the quashing

Court to carry out a detailed enquiry on the facts alleged, without first permitting the trial Court to evaluate the evidence of the parties. The quashing Court should not take upon itself the burden of separating the wheat from the chaff where facts are contested. To say it differently, the quashing proceedings must not become an expedition into the merits of a factual dispute, so as to conclusively vindicate either the complainant or the defence."

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17. It was further held that the Courts should be slow in

scuttling the complaint at a pre-trial stage. It was observed:

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"14. The parameters for invoking the inherent jurisdiction of the Court to quash the criminal proceedings under S.482 CrPC, have been spelt out by

Justice S. Ratnavel Pandian for the two judges' bench in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335: AIR 1992 SC 604, and the suggested precautionary principles serve as good law even today, for invocation

of power under Section 482 of the Cr.P.C.

"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding

should be exercised very sparingly and with

circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made

in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according

to its whim or caprice."

15. In the impugned judgment, the learned Judge had

rightly relied upon the opinion of Justice J.S. Khehar for a Division Bench in Rajiv Thapar (supra), which

succinctly expresses the following relevant parameters to be considered by the quashing Court, at the stage of issuing process, committal, or framing of charges, "28. The High Court, in the exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the

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accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/

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complainant, it would be impermissible to

discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the

prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same."

16. The proposition of law as set out above makes it

abundantly clear that the Court should be slow to grant the relief of quashing a complaint at a pre-trial stage, when the factual controversy is in the realm of

possibility, particularly because of the legal

presumption, as in this matter. What is also of note is that the factual defence without having to adduce any evidence needs to be of an unimpeachable quality, to altogether disprove the allegations made in the

complaint.

17. The consequences of scuttling the criminal process at a pre-trial stage can be grave and irreparable. Quashing

proceedings at preliminary stages will result in finality without the parties having had an opportunity to adduce

evidence, and the consequence then is that the proper forum, i.e., the trial Court, is ousted from weighing the

material evidence. If this is allowed, the accused may be given an unmerited advantage in the criminal process. Also, because of the legal presumption, when the cheque and the signature are not disputed by the appellant, the balance of convenience at this stage is in favour of the complainant/prosecution, as the accused will have due opportunity to adduce defence evidence during the trial, to rebut the presumption.

18. Situated thus, to non-suit the complainant, at the stage of the summoning order, when the factual controversy is yet to be canvassed and considered by the

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trial court, will not, in our opinion, be judicious. Based upon a prima facie impression, an element of criminality cannot entirely be ruled out here, subject to

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the determination by the trial Court. Therefore, when

the proceedings are at a nascent stage, the scuttling of the criminal process is not merited."

18. Therefore, the Court cannot hold that the cheque was

issued without any legal liability and quash the complaint without

allowing the complainant to prove his case before the learned Trial

Court.

19. to It was submitted that the complaint was filed beyond

the period of 30 days from the accrual of the cause of action. The

cause of action accrued to the complainant on 22.03.2021, when the

accused is stated to have refused the receipt of the notice and the

complaint was filed on 25.11.2021, which is beyond the period of

one month, provided under the law. This submission overlooks the

fact that the Hon'ble Supreme Court excluded the period of

limitation w.e.f. 15.3.2020 till 28.2.2022, including that prescribed

under Section 138 of the proviso (b) and (c) in Cognisance for

Extension of Limitation, in re, (2022) 3 SCC 117: 2022 SCC OnLine SC

27, wherein it was observed at page 119: -

"5. Taking into consideration the arguments advanced by the learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants

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in the prevailing conditions, we deem it appropriate to dispose of MA No. 21 of 2022 with the following directions:

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5.1. The order dated 23-3-2020 [Cognizance for

Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801] is restored and in continuation of the subsequent orders dated 8-3-2021 [Cognizance for

Extension of Limitation, In re, (2021) 5 SCC 452 : (2021) 3 SCC (Civ) 40 : (2021) 2 SCC (Cri) 615 : (2021) 2 SCC (L&S) 50], 27-4-2021 [Cognizance for Extension of Limitation,

In re, (2021) 17 SCC 231: 2021 SCC OnLine SC 373] and 23-

9-2021 [Cognizance for Extension of Limitation, In re, 2021 SCC OnLine SC 947], it is directed that the period from 15-3-2020 till 28-2-2022 shall stand excluded for

the purposes of limitation as may be prescribed under

any general or special laws in respect of all judicial or quasi-judicial proceedings.

5.2. Consequently, the balance period of limitation

remaining as on 3-10-2021, if any, shall become available with effect from 1-3-2022.

5.3. In cases where the limitation would have expired

during the period between 15-3-2020 and 28-2-2022, notwithstanding the actual balance period of limitation

remaining, all persons shall have a limitation period of 90 days from 1-3-2022. In the event the actual balance

period of limitation remaining, with effect from 1-3- 2022, is greater than 90 days, that longer period shall apply.

5.4. It is further clarified that the period from 15-3-2020 till 28-2-2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29-A of the Arbitration and Conciliation Act, 1996, Section 12-A of the Commercial Courts Act, 2015 and provisos (b) and

(c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of

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limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings."

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20. Therefore, the limitation period w.e.f. 15.03.2020 till

28.02.2022, is to be excluded. The complaint was filed before the

expiry of the extended period of limitation, and the same cannot be

said to be barred by limitation.

21. It was submitted that the petitioner was not residing in

India; she left India on 11th June, 2019 and is a permanent resident

of Portugal. Therefore, the proceedings against her are not

maintainable. Reference was made to Annexure P-3 to Annexure

P-5. These are the photocopies, and their authenticity has not been

established. Further, the complete copy of the passport has not

been filed, and no reliance can be placed upon a part of the

passport. It is impermissible to exercise the inherent jurisdiction by

relying upon the documents, which do not form part of the record

of the learned Trial Court, especially when the authenticity of the

documents is yet to be established. It was laid down by the Hon'ble

Supreme Court in MCD v. Ram Kishan Rohtagi, (1983) 1 SCC 1: 1983

SCC (Cri) 115 that the proceedings can be quashed on the face of the

complaint and the papers accompanying the same, no offence is

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constituted. It is not permissible to add or subtract anything. It was

observed:

.

"10. It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if, on the face of the complaint or the papers

accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out, then the High Court

will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code."

22. Madras High Court also held in Ganga Bai v. Shriram,

1990 SCC OnLine MP 213: ILR 1992 MP 964: 1991 Cri LJ 2018, that the

fresh evidence is not permissible or desirable in the proceedings

under Section 482 of Cr. P.C. It was observed:

"Proceedings under Section 482, Cr.P.C. cannot be

allowed to be converted into a full-dressed trial. Shri Maheshwari filed a photostat copy of an order dated

28.7.1983, passed in Criminal Case No. 1005 of 1977, to which the present petitioner was not a party. Fresh

evidence at this stage is neither permissible nor desirable. The respondent, by filing this document, is virtually introducing additional evidence, which is not the object of Section 482, Cr. P.C."

23. Andhra Pradesh High Court also took a similar view in

Bharat Metal Box Company Limited, Hyderabad and Others vs. G. K.

Strips Private Limited and another, 2004 STPL 43 AP, and held:

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"9. This Court can only look into the complaint and the documents filed along with it, and the sworn statements of the witnesses, if any, recorded. While

.

judging the correctness of the proceedings, it cannot

look into the documents, which were not filed before the lower Court. Section 482 Cr.PC debars the Court from looking into fresh documents, in view of the

principles laid down by the Supreme Court in State of Karnataka v. M. Devendrappa and another, 2002 (1) Supreme 192. The relevant portion of the said judgment

reads as follows:

"The complaint has to be read as a whole. If it appears that on consideration of the allegations, in the light of the statement made on oath of the

complainant that the ingredients of the offence or

offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no

justification for interference by the High Court. When information is lodged at the Police Station and an offence is registered, then the mala fides of

the informant would be of secondary importance. It is the material collected during the investigation

and the evidence presented in Court which decides the fate of the accused person. The allegations of

mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings".

24. A similar view was taken in Mahendra K.C. v. State of

Karnataka, (2022) 2 SCC 129: (2022) 1 SCC (Cri) 401, wherein it was

observed on page 142:

"16. ... the test to be applied is whether the allegations in the complaint, as they stand, without adding or

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detracting from the complaint, prima facie establish the ingredients of the offence alleged. At this stage, the High Court cannot test the veracity of the allegations,

.

nor, for that matter, can it proceed in the manner that a

judge conducting a trial would, based on the evidence collected during the course of the trial."

25. This position was reiterated in Supriya Jain v. State of

Haryana, (2023) 7 SCC 711: 2023 SCC OnLine SC 765, wherein it was

held:

13. All these documents, which the petitioner seeks to rely on, if genuine, could be helpful for her defence at

the trial, but the same are not material at the stage of

deciding whether quashing as prayed for by her before the High Court was warranted or not. We, therefore, see no reason to place any reliance on these three documents.

26. A similar view was taken in Iveco Magirus

Brandschutztechnik GMBH v. Nirmal Kishore Bhartiya, (2024) 2 SCC

86: (2024) 1 SCC (Cri) 512: 2023 SCC OnLine SC 1258, wherein it was

observed:

"63. Adverting to the aspect of the exercise of jurisdiction by the High Courts under Section 482CrPC, in a case where the offence of defamation is claimed by the accused to have not been committed based on any of the Exceptions and a prayer for quashing is made, the law seems to be well settled that the High Courts can go no further and enlarge the scope of inquiry if the accused seeks to rely on materials which were not there before the Magistrate. This is based on the simple

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proposition that what the Magistrate could not do, the High Courts may not do. We may not be understood to undermine the High Courts' powers saved by Section

.

482 CrPC; such powers are always available to be

exercised ex debito justitiae, i.e. to do real and substantial justice for the administration of which alone the High Courts exist. However, the tests laid down for

quashing an FIR or criminal proceedings arising from a police report by the High Courts in the exercise of jurisdiction under Section 482CrPC not being

substantially different from the tests laid down for quashing a process issued under Section 204 read with Section 200, the High Courts on recording due satisfaction are empowered to interfere if on a reading

of the complaint, the substance of statements on oath of

the complainant and the witness, if any, and documentary evidence as produced, no offence is made out and that proceedings, if allowed to continue, would

amount to an abuse of the legal process. This, too, would be impermissible if the justice of a given case does not overwhelmingly so demand." (Emphasis

supplied).

27. Therefore, it is impermissible to look into the

documents and to hold that the petitioner was not present in India

on the day when the endorsement for refusal was made.

28. It was submitted that the notice was not served upon the

accused, and the essential part of the cause of action is not

established. This submission is not acceptable. The notice was

sent to House No. 1703, Iqbal Nagar, Tibba Road, Near Samrala

Chowk, Ludhiana, Punjab, which is the same address mentioned in

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the present petition. Therefore, the notice was sent to the correct

address. Whether the petitioner was available in India at that time

.

or not is a disputed question of fact. The notice was returned with

the endorsement refused and is deemed to be served. It was laid

down by the Hon'ble Supreme Court in D. Vinod Shivappa v. Nanda

Belliappa, (2006) 6 SCC 456: (2006) 3 SCC (Cri) 114: (2006) 131 Comp

Cas 663: 2006 SCC OnLine SC 629 that a complaint cannot be

quashed when rthe notice is returned unserved with an

endorsement. It was observed at page 460:

"7. We do not agree with the counsel for the appellant that the complainant has admitted in the complaint that

notice had not been served within the meaning of Section 138 of the Act. What has been stated in para 8 of the complaint is the factum of the legal notice having

been returned unserved on 25-3-2004 with an endorsement. This was a fact which the complainant

could not deny. But in para 10 of the complaint, the complainant has stated that notice may be deemed to have been served. The reasons for deeming service are

stated in the earlier paragraphs of the complaint. The question which, therefore, arises is whether in these circumstances the appellant could pray for quashing of the proceedings under Section 482 of the Code of Criminal Procedure.

8. Under Section 138 of the Act, where a cheque issued by the drawer in the discharge of any debt or any other liability is returned by the bank unpaid, because the amount standing to the credit of that account is insufficient to honour the cheque, the said person is

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deemed to have committed an offence. This is subject to the proviso to Section 138, which provides that the cheque should have been presented to the bank within

.

the period of six months from the date on which it is

drawn or within the period of its validity, whichever is earlier. The payee must also make a demand for the payment of the said amount by giving a notice in writing

to the drawer of the cheque within 30 days of the receipt of the information by him from the bank regarding the return of the cheque unpaid. If, despite this demand, the

drawer fails to make the payment within fifteen days of the receipt of the notice, a cause of action arises for prosecuting him for the offence punishable under Section 138 of the Act. Section 142 provides that the

court shall take cognisance of an offence punishable

under Section 138 of the Act upon receipt of a complaint in writing made by the payee or, as the case may be, the holder in due course of the cheque. Such a complaint

must be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. However, discretion is given to the court

to take cognisance of the complaint even after the prescribed period, if the complainant satisfies the court

that he had sufficient cause for not making the complaint within such period.

9. It is not disputed that the drawer of the cheque makes himself liable for prosecution under Section 138 of the Act if he fails to make the payment within fifteen days of the receipt of the notice given by the drawee. His failure to make the payment within the stipulated period gives rise to a cause of action for the complainant to prosecute the drawer under Section 138 of the Act.

10. Mr Kailash Vasdev, learned Senior Counsel appearing for the appellant, vehemently contended before us that clause (c) of the proviso to Section 138 of the Act leaves no room for doubt that the cause of action arises only if

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the drawer of the cheque fails to make the payment within 15 days "of the receipt of the said notice".

According to him, therefore, it must be established on

.

record that the notice issued by the payee was in fact

received by him. He conceded that if the drawer of the cheque refuses to accept the notice, the court may presume service of notice, but in a case where the notice

is not served for any other reason, it cannot be said to be deemed service of notice giving rise to a cause of action. He submitted that apart from the seven notices in these

seven cases, several other notices were issued to the appellant on the same address, which he accepted, and where due, paid the amount also. He, therefore, submitted that the appellant has settled all those

disputes where the claim of the respondent was

justified, but he is not willing to pay the amount claimed by the respondent unjustifiably. It is a queer coincidence that the appellant received all those notices where the

demand was justified, and all the notices which could not be served upon him on account of his absence from his residence are those where the demand of the

respondent is, according to the appellant, not justified. We need not make any further comment on this aspect

of the matter.

xxxx

14. If a notice is issued and served upon the drawer of the cheque, no controversy arises. Similarly, if the notice is refused by the addressee, it may be presumed to have been served. This is also not disputed. This leaves us with the third situation where the notice could not be served on the addressee for one or the other reason, such as his non-availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere, etc. etc. If in each such case the law is understood to mean that there has been no service of notice, it would completely defeat the very

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purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for some time after issuing the cheque so

.

that the requisite statutory notice can never be served

upon him, and consequently, he can never be prosecuted. There is good authority to support the proposition that once the complainant, the payee of the

cheque, issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the

cheque. If he does not file a complaint within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can

dodge the postman for about a month or two, or a

person who can get a fake endorsement made regarding his non-availability can successfully avoid his prosecution because the payee is bound to issue notice

to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound

to issue the legal notice, which may be returned with an endorsement that the addressee is not available on the

given address.

15. We cannot also lose sight of the fact that the drawer

may, by dubious means, manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when the postman went for delivery of the letter. It may be that the address is correct and even the addressee is available, but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to a refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement

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made only to defeat the process of law, the court shall presume service of notice. This, however, is a matter of evidence and proof. Thus even in a case where the notice

.

is returned with the endorsement that the premises has

always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that

the endorsement is not correct and that the addressee, namely, the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice.

Therefore, it would be premature at the stage of issuance of process to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure. The question as to whether the

service of notice has been fraudulently refused by

unscrupulous means is a question of fact to be decided on the basis of evidence. In such a case, the High Court ought not to exercise its jurisdiction under Section 482

of the Code of Criminal Procedure."

29. Thus, it is impermissible to quash the complaint

because the notice was returned with an endorsement of refusal.

30. In any case, it was laid down in C.C. Allavi Haji vs. Pala

Pelly Mohd. 2007(6) SCC 555, that the person who claims that he

had not received the notice has to pay the amount within 15 days

from the date of the receipt of the summons from the Court and in

case of failure to do so, he cannot take the advantage of the fact

that notice was not received by him. It was observed:

"It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of

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Criminal Law, where there is no stipulation of giving notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can,

.

within 15 days of receipt of summons from the court in

respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of

receipt of summons (by receiving a copy of the complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not

pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under

Section 138, by ignoring statutory presumption to the

contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the

legislation. As observed in Bhaskaran's case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice, a trickster

cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape

from legal consequences of Section 138 of the Act."(Emphasis supplied)

31. Therefore, the submission that the essential ingredients

of Section 138 of the NI Act are not satisfied cannot be accepted.

32. In R.L. Varma & Sons (supra), the Delhi High Court

found that there was no service of the statutory notice. The address

mentioned on the letter was different from the address of the

accused, which is not the case here. In Jugesh Sehgal (supra), the

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Hon'ble Supreme Court held that the cheque was issued from an

account which was not maintained by the accused. In the present

.

case, the cheque was issued from the account maintained by the

accused, and this judgment also does not apply to the present case.

33. No other point was urged.

34. In view of the above, the present petition fails, and the

same is dismissed.

35. to The observation made herein before shall remain

confined to the disposal of the petition and will have no bearing,

whatsoever, on the merits of the case.

(Rakesh Kainthla)

Judge

22 August, 2025 (Pramod)

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