DEEP SHIKHA Vs. STATE OF UTTARAKHAND AND ANOTHER

JUDGEMENT

(1.) By means of this petition, moved under (for short Cr.P.C), the petitioner has sought quashing of the proceedings of criminal complaint case No. 4336 of 2007 Rampal Singh v. Deep Shikha relating to offence punishable under section 138 of Negotiable Instruments Act, 1881, Police Station Kashipur, pending in the court of Judicial Magistrate, Kashipur.

(2.) Brief facts of the case are that the respondent No. 2 Rampal Singh filed criminal complaint case No. 4396 of 2007 with the allegation that as a part of consideration of the property sought to be transferred, complainant/petitioner Deepshikha gave a cheque No. 227071 of Kashipur Urban Cooperative Bank Ltd. for an amount of Rs. 9,00,000/-, but when the same was presented by the complainant, the bankers dishonoured the cheque on the ground of insufficient funds. On this complainant (present respondent No. 2) sent a notice dated 25.08.2007, which could not be served on the petitioner. Thereafter notice dated 10.09.2007, was got sent by registered post which was served on the petitioner. Thereafter the complainant filed criminal complaint on 20.09.2007, before Judicial Magistrate, Kashipur in which after recording of statement of the complainant under section 200 of Cr.P.C., the petitioner was 3 summoned to face the trial in respect of offence punishable under section 138 of Negotiable Instruments Act, 1881.

(3.) Learned counsel for the petitioner drew attention of this Court to clause (c) of the proviso to section 138 of Negotiable Instruments Act, 1881, and it is argued that only after waiting for fifteen days from the date of receipt of notice, the criminal complaint could be maintainable. Clause (c) of proviso to section 138 provides that the prosecution under section 138 shall not be made if the drawer of the cheque makes a payment of the amount payable within the period of fifteen days of receipt of notice. Clause (b) of section 142 provides that criminal complaint shall not be entertained after one month of cause of action arose under section 138. As such there is no express bar in the law to entertain the criminal complaint within fifteen days on service of notice. On behalf of the petitioner attention of this Court is drawn to the case of Shakti Travels & Tours v. State of Bihar and another, 2001 1 RCR(Cri) 465 and it is argued that the criminal case within fifteen days of service of notice is not maintainable . On going through the said case, this Court finds that in that case the complainant had not pleaded that the accused was served with the notice. In that circumstance the Apex Court held that the complaint is not maintainable.