VIJAY KUMAR GUPTA Vs. P K JAIN

JUDGEMENT

(1.) This criminal revision is filed against the order of a Metropolitan Magistrate dated 11.3.2002 whereby he has diamissed an application of the petitioner accused for discharging him in a criminal complaint filed by the respondent under Section 138 of the Negotiable Instruments Act.

(2.) As per the allegations made in the complaint the intimation about dishonour of the cheque in question was received by the complainant on 26.4.2000. Thereafter, the notice of demand was sent by him on 4.5.2000 which was received back with the endorsement of the postman that the premises of the addressee were found locked despite repeated attempts. It is also averred that the said notice was received back unserved on 8.6.2000 and thereafter the complainant respondent sent another notice of demand dated 12.6.2000 which was received by the petitioner on 29.6.2000. Counsel for the petitioner has argued that after the first notice dated 4.5.2000 was received back with the endorsement of the postal department that it had been refused by the petitioner the issue of second notice of demand dated 12.6.2000 would not give cause of action to the petitioner to file a criminal complaint. Hie second contention is that as per averment of the criminal complaint the notice dated 4.5.2000 was received back with the postal remark that the premises were found locked on 8.6.2000 and under section 27 of the General Clauses Act presumption of due service of the notice on the petitioner arises, therefore, the criminal complaint which has been filed on 29.7.2000 is beyond the period of one month which is prescribed for filing the complaint in accordance with clause (c) of Section 142 of the Act so the criminal complaint is barred by time.

(3.) The petitioner filed an application for discharge on the ground that the complaint is filed beyond the period of one month prescribed by clause (c) of Section 142 of the Act for filing of the criminal complaint for offence under Section 138 of the Act the petitioner is entitled to be discharged.