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 encashment before the bank, same was dishonoured. On 5-8-2009 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 encashment, 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 punishable 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 vehemently argued that after dishonoured of the cheque and issuance of first notice the respondent was under obligation to file complaint within forty-five 45 days of service of notice but the respondent has failed to file the complaint within the limitation after second notice, which was time barred, therefore, continuance of such criminal proceeding before the Trial Court would be abuse of process of the Court.