SUKAL SAI Vs. DINESH AGRAWAL

JUDGEMENT

(1.) Instant petition has been preferred by the applicant against the order dated 12.11.2008 passed by Additional Sessions Judge, Mahasamund in Criminal Revision No. 59/2007 confirming the order dated 12.9.2007 passed by the Judicial Magistrate First Class, Saraipali in Criminal Case No. 1116/2004.

(2.) Facts of the case in brief are that a complaint case was filed by the respondent on 25.9.2004 under Sec. 138 of the Negotiable Instruments Act alleging that on 6.6.2004 a cheque of Rs. 1,30,000 was issued by the applicant which was presented before the Bank on 7.6.2004. On 11.6.2004 the Bank had informed the respondent/complainant that the applicant had closed his account and therefore the cheque could not be honoured. On 19.6.2004 the respondent/complainant had issued a notice to the applicant under Sec. 138(b) of the Negotiable Instruments Act. Thereafter, in stead of filing a complaint case as stipulated under Sec. 138 (b) of the Negotiable Instruments Act, he issued a second notice on 31.8.2004 to the applicant and then on 25.9.2004 he filed a complaint before the competent Court who had taken cognizance on the same vide order dated 4.10.2004.

(3.) It appears from the record that cognizance on the complaint of the respondent was taken on 4.10.2004 by the trial Court. Against the order dated 4.10.2004, the applicant preferred a revision before the Additional Sessions Judge, Mahasamund which came to be dismissed on the ground that as the applicant had not raised any objection before the learned Magistrate in respect of maintainability of the complaint case, revision is not maintainable. Pursuant to this order of the revisional Court, the applicant again approached the trial Court raising the preliminary objection in respect of maintainability of the complaint itself and praying for his discharge. Vide order dated 12.9.2007 learned Magistrate again dismissed the application of the applicant which was confirmed by the revisional Court by order impugned dated 12.11.2008.