SARITA SHRIWAS Vs. RAJINI KHATRI

JUDGEMENT

(1.) BY this petition, the challenge is made to the cognizance taken under Section 138 of the Negotiable Instruments Act, 1881 (for short "the NI Act") whereby the notices were issued to the petitioner/accused by the Court of JMFC, Raipur on 31 -8 -2009. Learned Counsel for the petitioner submits that the respondent had filed a complaint on 17 -8 -2009 before the JMFC, Raipur, on the ground that the cheque worth Rs. 90,000/ - was dishonoured for want of money. The cheque drawn on Central Bank of India bearing No. 142789, dated 24 -3 -2009 was issued in favour of the respondent and on being presented, it was dishonoured on account of insufficient funds. It is alleged that respondent, thereafter, issued a demand notice to the petitioner/accused on 25 -7 -2009 through her Advocate as required under the Negotiable Instruments Act.

(2.) LEARNED Counsel for the petitioner submits that in the said notice, the address of the petitioner was wrongly mentioned, as such, the presumption cannot be drawn that the service of notice was effected. He, therefore, submits that Section 138 -B mandates that the service of notice to be effected and mere sending of the notice will not comply with the provisions of Section 138 -B. Therefore, the issuance of summons by the Court below on that basis is bad in law. Further, it is submitted that the cognizance was taken by the learned Court below on 31 -8 -2009 without recording the evidence of the complainant/respondent and as such, the very taking cognizance of the offence was bad inasmuch as the affidavit was subsequently filed on 7 -9 -2013 that is much after taking the cognizance on 31 -8 -2009, He, therefore, submits that the same is also clearly illegal. The Counsel further submits that Section 142 of NI Act puts a rider that after receipt of notice only, the cognizance could have been taken and without such service, the same was bad in law. He further vehemently submitted that cognizance cannot be taken only on the basis of affidavit without any examination.

(3.) PER contra, learned Counsel appearing for the respondent submits that the address of the petitioner was correctly shown in the notice which was received by her. It is stated that the petitioner was shown to be a resident of Bajrang Nagar Police Station, Azad Chowk, therefore, the mere fact that the addressee was resident of Bajrang Nagar, Police Station, Saraswati Nagar will not make much difference as the notice was served. He further submits that the notice was duly received and mere fact that the police station was wrongly shown does not make any difference. He further submits that presumption of the General Clauses Act and Section 94 of the NI Act shall come into play, which draws a presumption of service of notice. He further submits that alongwith the original complaint under Section 138 of the NI Act, an affidavit was also attached with the complaint under Section 138. Therefore, the Trial Court has taken the cognizance on the basis of such affidavit, which is recorded in its order sheet and hence the taking of cognizance cannot be faulted with at the instance of the petitioner.