JASBIR SINGH Vs. STATE OF UTTARAKHAND AND ANOTHER

JUDGEMENT

(1.) BY way of this petition moved under Section 482 Cr.P.C., a prayer has been advanced to quash the Complaint Case No. 842 of 2006 titled as Amitabh Kala Vs. Jasbir Singh pending in the court of Judicial Magistrate, Rudraprayag as well as order of cognizance dated 23.08.2005 passed therein. Learned Magistrate, having received the complaint filed by respondent Amitabh Kala and perusing the contents nay the relevant papers filed therewith and the statement of complainant as well, asked accused Jasbir Singh to stand trial for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter called as ?Act?).

(2.) THE facts show unnecessary details are that admittedly Jasbir Singh took a loan of Rs. 20,000/ - from Amitabh Kala and issued two cheques, each valued Rs. 10,000/ - as security of the loan to him. When Amitabh Kala submitted these two cheques in his bank at Rudraprayag, the same were dishonoured by the bankers on the ground of closure of account by drawer (Jasbir Singh) of the cheques. Petitioner himself admitted in the averments of his application that he wound up his business at Rudraprayag and moved to Dehradun, so he closed his bank account there.

(3.) IT has been contended on behalf of the petitioner that complaint filed by Amitabh Kala does not disclose, as to the date of issuance of notice under Section 138(b) of the Act and it also does not disclose as to the date of service of this notice. So this complaint is not entertainable by the Magistrate. The said argument advanced by learned counsel for petitioner is quite baseless because notwithstanding the absence of pleadings in the complaint regarding issuance of notice and service of the same, the fact regarding the conditions, which are sine qua non as envisaged by provision aforementioned, have been fulfilled by the complainant, which is adverted by the impugned order of cognizance. Undoubtedly, the averments of the complaint may be ill drafted but the same will not have any detrimental effect upon the impugned order of cognizance because notice of demand was issued on 07.07.2005, therewithal telephonic call making the similar demand and the complaint was filed within 30 days of the sending of notice that was well within time. Even if for a moment, the argument advanced on behalf of the petitioner is taken for consideration, then also he has no reason to file the petition. 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 ruled that when it is argued that no notice was sent or received, as envisaged under Section 138(b) of the Act, but the accused received copy of complaint with summons then it is incumbent upon him to make payment of the cheque within 15 days of the receipt of the summons and then submit to the court for rejection of the complaint and in case, he did not do so, then accused cannot be permitted to contend that there was no proper service of notice.