YOGESH RANI Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) BY way of this petition, the prayer has been made to quash the order of cognizance dated 06.03.2006 passed by Judicial Magistrate, Roorkee, Haridwar as well as order of Sessions Judge Haridwar dated 26.10.2007 passed in criminal revision no. 363 of 2006. It has also been prayed to quash the entire proceedings of criminal case no. 543 of 2006 titled as Bharat Ahuja Vs. Yogesh Rani under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter called as 'Act'). It is pertinent to mention that hearing is given to learned counsel for the applicant while none turns up on behalf of respondent no. 2 so hearing is accorded to learned Government Advocate.

(2.) HAVING heard learned counsel for the parties, it appears that cheque worth of Rs. 10,000/- was drawn by Yogesh Rani from her Banker and issued to complainant Bharat Ahuja on dated 04.02.2006 and the same was dishonoured by the Bank on account of insufficiency of funds and returned to complainant on 07.02.2006. As disclosed in the order of cognizance, he sent a notice of demand on dated 16.02.2006 to Yogesh Rani but in vain. So a complaint was filed on 06.03.2006 under Section 138 of the Act read with Section 420 IPC wherein after perusing the statement of the complainant as well as the documentary evidence filed in support of the complaint, learned Magistrate passed order of cognizance, which is under challenge. This order was challenged by way of revision no. 363 of 2006 before court of Sessions Judge, who dismissed the same on merits.

(3.) FORTIORI , the Hon'ble Apex Court in the case of C.C. Alavi Haji Vs. Palapetty Muhammed and another reported in 2007 (6) SCC 555 has held that where drawer claims not to have received the notice, as envisaged under Section 138 of the Negotiable Instruments Act and he has received copy of the complaint with the summons, then he could have made payment within 15 days of the receipt of the summons, which was due upon him, if he has not made payment then he cannot contend that there was no proper service of notice.