PREMISH VERMA Vs. LOKESH SHARMA

JUDGEMENT

(1.) IN this revision, the order dated 19. 7. 2006 passed by Shri G. K. Mishra, Additional Sessions Judge, Korba (hereinafter referred to as 'the ASJ') in Criminal Revision No. 6/06 is under challenge, whereby the order dated 21-02-2006 passed by the Judicial Magistrate First Class, Korba rejecting the objection as to the maintainability of the complaint filed by the applicant herein under section 138 of the Negotiable Instruments act, 1881 (hereinafter referred to as 'the act') was reversed.

(2.) BRIEF facts are that during commercial transactions, to satisfy a legally enforceable debt, Cheque No. 154749 dated 9. 4. 2003 drawn by the non-applicant on Indira priyadarshini Mahila Nagrik Sahakari bank Limited, Press Complex, Sadar Bazar, raipur (C. G.) for a sum of Rs. 5,00,000 was given to the applicant which was presented by the applicant to his banker, i. e. , the Bank of India, Branch Korba (hereinafter referred to as 'the Bank' ). On 23. 8. 2003, the applicant received information from the Bank that the aforesaid cheque had bounced due to lack of sufficient balance in the account of the non-applicant.

(3.) UPON receipt of such information from the Bank, the non-applicant was informed by the applicant on telephone on the same day and several times thereafter that the cheque drawn by him has been returned unpaid. On 22. 9. 2003, the applicant sent a notice in writing under proviso (b) to Section 138 of the Act to the non-applicant under certificate of posting. Despite receipt of notice, the non-applicant failed to make payment of the said amount of money to the applicant within the statutory period mentioned in Section 138 (c)of the Act. A complaint was filed by the applicant on 21. 10. 2003 before the Chief Judicial Magistrate, Korba under Section 138 of the Act. Statement on oath of the applicant under section 200 of the Code of Criminal Procedure was recorded by the Chief Judicial magistrate, Korba, who took cognizance of the offence under Section 138 of the Act on 31. 10. 2003 and issued notice to the non-applicant. On 24. 12. 2004, an objection was filed by the non-applicant regarding the maintainability of the complaint on the sole ground that legal notice as contemplated under Section 138 (b) of the Act was not given by the applicant within the statutory period of thirty days from the receipt of information by the applicant from the Bank regarding the return of the cheque as unpaid. This application was considered by shri P. S. Markam, Judicial Magistrate First class, Korba (hereinafter referred to as 'the magistrate'), to which Court the case was transferred on 15. 9. 2004.