JUDGMENT Hon’ble Ramesh Sinha, J.—Heard Sri Piyush Shukla, learned counsel for the applicant and learned AGA for the State. 2. Both the aforesaid 482 Cr.P.C. applications have been filed with a prayer to quash the summoning order dated 8.6.2012, passed by A.C.J.M, Court No. 01, Kanpur Dehat and order dated 1.11.2012, passed by Additional District and Sessions Judge, Court No. 2, Kanpur Dehat so for it relates to summoning of applicant under Section 138 N.I. Act, P.S. Shivli, district Ramabai Nagar in complaint case Nos. 501 of 2012 and 502 of 2012 respectively. 3. The allegations made in the complaint is that the complainant was given a cheque of Rs. 37,000/- drawn on Bank of Baroda, U.P. Gramin Bank vide cheque No. 195734 dated 24.1.2012 by the applicant Mahendra Kumar. The said payment was made by the applicant on the demand made by the complainant Raj Kishore Tiwari (hereinafter referred as the Complainant). When the said cheque was presented by the complainant through it’s Bank, then the same was returned by the drawer Bank with a remark that the said cheque could not be honoured because of insufficiency of funds. The complainant again on 26.3.2012 sent the said cheque for it’s encashment to the drawer Bank, but the same was returned on 27.3.2012 with an endorsement that the said cheque would not be honoured due to insufficient funds. The complainant thereafter went to the applicant with the memo of the Bank asking payment from him taking the said cheque but the same was refused. The complainant sent a registered notice on 28.3.2012 to the applicant which he refused to accept. Hence he filed the present complaint against the applicant under Section 138 of Negotiable Instrument Act on 21.4.2012. 4. The learned Magistrate after recording the statement of the complainant and its witnesses under Sections 200 and 202 Cr.P.C. has summoned the applicant vide order dated 8.6.2012 in complaint case No. 501 of 2012 502 of 2012 respectively under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the Act). 5. Aggrieved by the summoning order passed by the Magistrate, the applicant filed a criminal revision before the lower revisional Court which was numbered as Revision No. 78 of 2012, Mahendra Kumar Shukla v. State before the Court of Additional District and Sessions Judge, Kanpur Dehat/Ramabai Nagar which was heard by Additional District and Sessions Judge, Court NO. 5. Aggrieved by the summoning order passed by the Magistrate, the applicant filed a criminal revision before the lower revisional Court which was numbered as Revision No. 78 of 2012, Mahendra Kumar Shukla v. State before the Court of Additional District and Sessions Judge, Kanpur Dehat/Ramabai Nagar which was heard by Additional District and Sessions Judge, Court NO. 2. Kanpur Dehat, who vide order dated 1.11.2012 partly allowed the revision of the applicant and set-aside the summoning order under Section 420 IPC but so far as the summoning under Section 138 of Negotiable Instrument Act was concerned, the same was upheld by the lower revisional Court. Hence the present application under Section 482 Cr.P.C. 6. It has been submitted by the learned counsel for the applicant that from the perusal of the complaint filed by the complainant, it is apparent that he has not disclosed any date of service of notice for repayment of cheque money upon applicant. Thus from which date, the cause of action arose to the complainant to file the present complaint against him cannot be determined, in view of Section 138 the Act, 1881. He submitted that in view of the proviso of Section 138 Negotiable Instrument Act, failure to disclose the date of service of the notice upon the applicant by the complainant renders the complaint illegal and further the summoning order passed by the learned Magistrate against the applicant is liable to be set-aside on this ground alone. 7. Learned counsel for the applicant has place reliance on judgment of this Court in the case of Kanhaiya Lal v. State of U.P. and another, 2010(4) ADJ 188 , in which it was held that if no date of service of notice demanding the repayment of cheque money from the accused is mentioned the complaint is liable to be quashed. 8. Per contra, learned AGA on the other hand has argued that the contention of the learned counsel for the applicant is not correct as he submitted that the proviso of Section 138 the Act requirement is meant to protect the drawers whose cheque have been dishonoured for the fault of others and may have genuinely wanted to fulfill their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them. It being a part of their modus-operandi to cheat innocent persons. In support of his contention, he has placed reliance on the judgment of the Apex Court reported in the case of C.C. Alavi Haji v. Palapetty Muhammed and another, 2007 All CJ 2096. Hence in view of the said judgment of the Apex Court, the summoning order passed by the learned Magistrate is legal and just in the eye of law. Hence the same may not be interfered with by this Court in the present application under Section 482 Cr.P.C. 9. Considered the submissions made by learned counsel for the parties. From the perusal of the complaint, it is apparent that when the cheque was dishonoured, then the complaint had first personally contacted the applicant and inform him about the dishonour of the cheque which was given to him by the applicant and made a demand to make the payment of the same but he refused to do so. Thereafter, a complainant has sent a registered notice on 28.3.2012 making the payment of the said cheque to the applicant which he refused to accept. Hence he filed the present complaint against the applicant under Section 138 of Negotiable Instrument Act. The contention pertaining to notice to be given to the drawer have been formulated and incorporated in clauses (b) and (c) of the proviso to 138 of Negotiable Instrument Act which is quoted here below : Section 138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid. either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice. either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice. to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless—(a) the cheque has been, presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course. of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.—For the purposes of this section,” debt or other liability” means a legally enforceable debt or other liability. 10. The Apex Court in the case of C.C. Alavi Haji (Supra) has enunciated the presumptions under Section 114 of the Evidence Act and Section 27 of the General Clauses Act which is very well discussed in para No. 13, 14, 15 and 17 of the Judgment which is quotted here below : 13. According to Section 114 of the Act, read with illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the Court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the General Clauses Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of G.C. Act is extracted below: 27. Meaning of service by post.—Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. 14. 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 knowledge of the notice. Unless and until the contrary is proved by the addressee, 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. Unless and until the contrary is proved by the addressee, 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. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or house” locked” or “shop closed” or “addressee not in station”, due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh; State of M.P. v. Hiralal and others and V.Raja Kumari v. P.Subbarama Naidu and another] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. 15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well-settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends. 17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a 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 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 alongwith 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. 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. 11.Thus the contention of the learned counsel for the applicant that the complaint did not disclose any date of service of notice upon the applicant, does not find force in view of the above decision of the Apex Court and the discussed provisions under Section 114 of the Evidence Act as well as Section 27 of the General Clauses Act. The case law which is cited by the learned counsel for the applicant in support of his argument does not hold a good law in view of the judgment of the case law in the case of C.C. Alavi Haji (Supra). Hence in view of the foregoing discussions, no interference is called for in the summoning order as well as the quashing of proceedings of the aforesaid case. 12. The petition lacks merit. It is, accordingly, dismissed. ——————