NIMESH SHUKLA Vs. VIKAS KUMAR

JUDGEMENT

(1.) BY this petition under Section 482 of the Code of Criminal Procedure. 1973 (for short 'Code'), the petitioner has prayed for quashment of criminal proceeding pending in the Court of Judicial Magistrate First Class, Bilaspur, in Criminal Complaint Case No.922/ 2010, whereby the trial Court has taken the cognizance for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') on the basis of complaint filed on behalf of the respondent.

(2.) AS per undisputed facts of the case, the petitioner has issued cheque in favour of the respondent, which was presented for in cashment before the bank. same was dishonored. On 5.8.200y notice under Section 138 of the Act was given to the petitioner, which was returned unserved with an endorsement that the petitioner is not residing in the given address. Again cheque was presented for incashment, which was again dishonoured on 14.9.2009 on the ground of difference in signature. Again notice under Section 138 of the Act was issued upon the petitioner which he has received but has not replied the same. Thereafter complaint under Section 138 of the Act and Section 420 of the IPC was filed. The trial Court has taken the cognizance against the petitioner for the offence liable under Section 138 of the Act. Objection relating to maintainability of the complaint was filed by the petitioner. Same has been dismissed vide order dated 4.11.2011.

(3.) LEARNED counsel for the petitioner placed reliance in the matter of Mis Indo Automobiles v. Mis Jaidurga Enterprises & others' in which the Supreme Court has held that once notice issued on correct address, it must be presumed that the service has been made effective. Learned counsel further placed reliance in the matter of Sadamndan Bhadran v. Madhavan Sunil Kumar2 in which the Supreme Court has held that cause of action to file complaint of non-payment despite issue of the notice arises once and not after repeated dishonor or representation. Learned counsel also placed reliance in the matter of Tameeshwar Vaishnav v. Ramvishal Gupta3 in which the Supreme Court has held that notice issued on correct address be presumed that the service has been made effective. 1. 2009(2) C.G.L.J 297 (SO 2. (1998) 6 SCC 514. 3. (2010) 2 SCC 329 4. (2009) 1 SCC 500.