SANTOSH AGGARWAL Vs. AUSHIM KAPOOR

JUDGEMENT

(1.) By the present petition filed under Section 482 Cr.P.C., the petitioner seeks quashing of the order dated 22.1.2003, whereby the learned Additional Sessions Judge while exercising the powers of revisional court directed dismissal of the complaint filed by the petitioner being premature and not maintainable.

(2.) The brief facts of the case relevant for deciding the present petition are that the petitioner executed an order placed by the respondent for making garments and in consideration thereof the respondent paid the petitioner vide pay order for Rs.50,000/- and cheque no. 590566 for Rs.39,310/- dated 14.02.1998. Petitioner deposited the said cheque to his banker for payment, which was returned vide memo dated 17.02.1998 with the remarks "Payment Stopped by the drawer". The petitioner sent a demand notice dated 24.02.1998 and the same was received by the respondent on 26.02.1998. Reply to the same was sent by the respondent on 01.03.1998 but since no payment was made by the respondent, the petitioner filed a complaint dated 12.03.1998 before learned M.M under Section 138 and 142 N.I Act and Section 420 IPC. On receipt of same, learned M.M took cognizance and passed an order for recording of statement of petitioner and his witnesses on 12.05.1998 and finally, summons were issued against respondents vide order dated 09.02.2000. On directions of this Court vide order No. F 3(4)/ADJ20065-20115/1185 dated 21.03.2002 the matter was transferred to the Court of the learned ASJ where the respondents filed application for recalling of the summoning order and vide order dated 22.01.2003, the complaint was dismissed by the learned ASJ on the ground that the complaint filed was premature, and aggrieved by the same, the present petition has been filed by the petitioner.

(3.) The counsel appearing for the petitioner submitted that the learned Magistrate did not take cognizance of the complaint on 12.3.98 when the complaint was taken up by the magistrate for the first time. As per the counsel for the petitioner the cognizance of the complaint was taken by the learned magistrate only on 28.10.99 and 9.2.2000, when based on the evidence adduced by the petitioner the Magistrate examined the entire matter and after taking a prima facie view directed the process to be issued against the respondents. Counsel thus contended that the complaint filed by the petitioner on 12.03.1998 can not be considered premature as the period of 15 days as then was applicable would be reckoned from the date when the cognizance of the complaint was taken by the Magistrate which in the present case was 28.10.1999 and 9.2.2000. In support of his arguments counsel placed reliance on the judgment of the Apex Court in Narsingh Das Tapadia Vs. Goverdhan Das Partani & Anr., 2000 7 SCC 183.